Baljinder Singh v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 1895/2018

[2021] HKCFI 3703

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1895 of 2018

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Decision dated 23 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, I shall deal with his application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 was amended to the effect that the proposed respondent is the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”), the interested party is the Director of Immigration (the “Director”) and the date of the Board’s Decision is 23 August 2018 instead of 31 August 2018.

The applicant

4.The applicant is an Indian national.  He came to Hong Kong on 12 December 2015 illegally and was arrested by police on the next day.  He lodged his non-refoulement claim on 15 December 2015.

5.He claimed that if refouled, he would be ill-treated or killed by his creditor Mahinder Singh and his men.  He had borrowed 300,000 rupees from the creditor for his sister’s marriage.  He had to give collateral security of a piece of land to the creditor.  He had repaid his debt in mid-2014.  The creditor refused to return the land to him because the value of the land had increased because of its location.  The creditor proposed to exchange his own land with his land.  The applicant refused.  He filed a civil suit with court for recovering his land.

6.In mid-2014, the creditor brought with him four or five men to his home. They had a dispute over the land.  Those people assaulted him and hurt him.  He had to be admitted in hospital and received medical treatment. He reported this matter to police.  The police did not take action, but advised him to swap his land with the creditor.  One or two months later, he was riding a motorbike and was hit behind by the same group of people driving a vehicle. His left ring finger was injured.  It took 15-20 days to recover.  He decided to leave India for Hong Kong.  His first attempt to Hong Kong failed as the immigration officer refused his entry.  He was sent back to India.  That was between November 2014 and March 2015.  His creditor learned that he had returned home. They went to his home where they assaulted him with sticks.  He sustained bruises all over his body and had to receive medical treatment.  His father filed a complaint to police.  The police did not take any action against the creditor.  In December 2015, he came to Hong Kong through China by boat illegally.

The Director’s Decision

7.The Director considered his application in relation to the following risks:

a.  risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

8.By Notice of Decision dated 30 April 2018 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director found that the level of risk that he returned to India was low [12]; that state protection would be available to him [16] and that relocation was an option open to him [20].

The Board’s Decision

9.The applicant appealed to the Board against the Director’s Decision.  In the Board’s Decision, it is unclear whether the applicant had attended a hearing before the Adjudicator, who said that the applicant’s case was gleaned essentially from his written signification, his NCF, his record of interview and his NOAP [40].  However, the Board emphasized that the appeal was by way of a re-hearing [14] and a hearing bundle had been prepared for the oral hearing scheduled on 26 July 2018 [10].  There is no record of any cross-examination by the Adjudicator on the applicant’s evidence.  Nor was there any record of fact clarification.  If the Board does not require any clarification of facts with the applicant, it seems that it is not necessary to have an oral hearing.  See Rahman Mohammad Arifur v Li Kwok-wai, the Adjudicator of the Non-Refoulement Claims Petition Office and Director of Immigration [2018] HKCFI 2726, HCAL 1076/2018, 13 December 2018, §19.

10.By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decision.

11.The Board considered the applicant’s evidence and for the reasons set out in its Decision, it found that of the facts in support of the claimant’s claim, it did not accept that the debt had been fully paid [124]. Although it accepted that the applicant was assaulted by the creditor and his people on two occasions and he had suffered injuries as alleged, it considered that the state was not involved [139]; that he failed to establish that state protection was not available to him [142] and internal relocation is reasonable and practicable [144-161].

Application for leave to apply for judicial review

12.The applicant filed Form 86 on 10 September 2018 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of his application, he said that the Board’s Decision was unfair and unreasonable.

DISCUSSION

14.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicants’ appeal. The Court will not usurp the fact finding power vested in the Director and the Board.  See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC, 526, CA. §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

15.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13(1) .… …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

16.The Board did not reject all his evidence.  However, it did not accept the main facts in support of his claim and that state protection and internal relocation were available to him if he returned to India.  There is no evidence to show that the Board erred in the finding of the facts or the application of the laws to his case.

17.The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.

CONCLUSION

18.I therefore refuse to grant leave to the applicant to apply for leave for his intended judicial review.  Accordingly, I dismiss his application.

Dated the 16^th day of December 2021

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1