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

HCAL 1537/2018

[2022] HKCFI 222

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1537 of 2018

BETWEEN

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 20 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 national of India.  He entered Hong Kong as a visitor on 12 January 2015 but did not depart when his visa expired.  He overstayed and was arrested on 29 September 2015.  On 1 October 2015, he lodged a non-refoulement claim.  On 24 August 2017, he was arrested by the Hong Kong police for suspected offence of theft and later received a suspended sentence.   

5.The applicant claimed that, if refouled, he would be harmed or killed by his father’s cousins due to a land dispute.  According to the applicant, the cousins belonged to Shiromani Akali Dal (“SAD”).  They had land disputes with the applicant’s father since around 2011.  Because of the land dispute, the applicant encountered two incidents with the SAD members from 2011 to 2012 when he was hit by a car and was threatened by some unknown men.  He fled to Samaslar village after these two incidents.  Yet, he was still chased by the SAD members there.  The applicant then went to Moga, another village, but he was again ambushed by 10 to 15 of the SAD members.  Even when he relocated to Firozpur, he saw the cousins and their associates there.  Thereafter, he went to Muktsar where nothing eventful happened but, out of fear, he eventually fled to Hong Kong for protection.  Details of his story are set out in paragraph 6 of the Director’s Decision and paragraphs 12 to 31 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 a Notice of Decision dated 10 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 of him being harmed or killed upon refoulement was assessed to be low [12]-[15]; that state protection was available to him [16] and that internal relocation was an option open to him [17].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 25 June 2018, the applicant attended the oral hearing before the Board, during which he answered several inquiries and also confirmed that he had received the hearing bundles on time and that he would withdraw his previous request to the Board to obtain documents to prove his case [8].  

9.Having considered all the evidence, the Board dismissed his appeal.  The Board considered the applicant’s version of events for the material aspects of his claim [12]-[31].  Weighing the applicant’s oral evidence and the evidence in his non-refoulement claim, the Board concluded that his evidence was not acceptable or reliable.  It pointed out that the applicant’s father owned the land and it was difficult to comprehend why the applicant was the target [32]. It also noted that, even taking the applicant’s claim as true, the descriptions from the applicant did not support his claim that the three cousins attempted to kill him as in the past incidents they had ample opportunities to do so but did not cause any severe injuries to the applicant [33].  In any event, state protection and internal relocation to Delhi or Mumbai were available to the applicant [34]-[38]; [66]-[69].  Thus, the Board rejected his claim on all applicable grounds [39]-[65].    

Application for leave to apply for judicial review

10.The applicant filed Form 86 dated 3 August 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 there was no lawyer to advise him; that the Board based upon assumption without considering the evidence and that the Board made inference without evidence.

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 Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178 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].  It is simply not true to say that the Board made assumptions or inference without evidence in support. The Board had set out the reasons for its findings.

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 to show 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 21^st day of January 2022

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