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

HCAL 1463/2018

[2021] HKCFI 3905

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1463 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 11 July 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 (“RHC”), the matter is dealt with on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.

The applicant

4.The applicant is a citizen of India.  He entered Hong Kong on 4 March 2016 as a visitor but overstayed since 19 March 2016.  Later, on 5 April 2016, he surrendered to the Immigration Department.  On 12 October 2016, he lodged a non-refoulement claim.

5.The applicant claimed that if refouled, he would be harmed or killed by Ravi Kumar (“Ravi”), Rakesh Kumar (“Rakesh”) and Ravi Kumar’s nephew due to a land dispute.  According to the applicant, Ravi and Rakesh had strong connection with Member of Legislative Assembly (“MLA”) from a political party called Shiromani Akali Dal Party (“SAD”).  They were criminals and had improper contacts with the police.  In 2015, Ravi sought to expand his land and offered to purchase the applicant’s land at a low price.  The applicant refused.  In two incidents, the applicant was attacked by Ravi, Rakesh and Rakesh’s nephew and sustained injuries.  He was also verbally threatened by them.  Out of fear, he fled to Hong Kong for protection.   Details of his story are set out in paragraph 7 of the Director’s Decision and paragraph 12 of the Board’s Decision described below.

The Director’s Decision

6.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”).

7.By Notice of Decision dated 27 March 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 of him being harmed or killed by his enemies upon refoulement was assessed to be low [12]-[13]; that state protection was available to him [14]-[17] and that internal relocation was an option open to him [18]-[23].

The Board’s Decision

8.The applicant appealed against the Director’s Decision.  On 4 July 2018, the Board scheduled an oral hearing for his appeal, during which the applicant gave oral evidence.

9.By the Board’s Decision, the Board affirmed the Director’s Decision and dismissed his appeal.  The Board evaluated the applicant’s evidence against his oral testimony.  It found that the applicant’s evidence was implausible.  For instance, the applicant failed to even provide a rough description of his own land [102].  His evidence was constantly changing when asked about who bought the land [111].  The applicant also failed to give an answer for the price of the land [114].  The Board found that his oral evidence was inconsistent with those in his non-refoulement claim form [116] and that, according to the available country of origin information (“COI”), it was implausible for the applicant and his wife to have means to purchase the alleged pieces of land in 2014 at their alleged price [117]-[123].  Further, the Board rejected the applicant’s excuse of having poor memory when he failed to give detail accounts in relation to the land [124]-[125].  Insofar as his enemies were concerned, the Board concluded that the applicant’s descriptions contradicted with the COI [126]-[144].  Thus, the Board rejected the applicant’s non-refoulement claim on all applicable grounds [145]-[155].  In any event, it found that internal relocation was available to the applicant [156]-[164].

Application for leave to apply for judicial review

10.The applicant filed Form 86 dated 25 July 2018 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, he said that the Board did not assess his case properly because he was not given free legal representation and time for his preparation.  Also, he was not given time to make submissions in respect of BOR 2 risk.  He should be given time to seek legal advice and prepare his case on BOR 2 risk and other related matters.

DISCUSSION

12.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 applicant’s 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).

13.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

14.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.”

15.He has submitted no valid ground to assist his application. The Board has reject his evidence on the facts of his claim.  He therefore has no factual basis in support of his claim. The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 held that the applicant is not entitled to free legal representation at every stage of the proceedings as he had already had duty lawyer’s service at the screening stage [22].  He did not complain to the Board that he did not have sufficient to prepare his case.  He is not allowed to raise this issue before the Court.

16.The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

17.There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

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

Dated the 31^st 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