Case Document

100%Judiciary

HCAL 2083/2018

[2022] HKCFI 204

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2083 of 2018

BETWEEN

	Satnam Singh	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 Decisions dated 26 September 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not request a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), his application 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 sought to enter Hong Kong on 22 May 2013 but was refused the permission to land. On 23 May 2013, he lodged a torture claim, which was rejected on 22 July 2013. On 3 March 2014, he lodged a non-refoulement claim.

5.The applicant claimed that, if refouled, he would be harmed or killed by Vicky, or Vicky’s people because the applicant refused to work for him in selling drugs. According to the applicant, Vicky’s father was politically influential. His father belonged to Congress Party and was an ex-Member of the Legislative Assembly (“ex-MLA”) of Rajasthan. The applicant was introduced by a friend to Vicky but the applicant did not want to work for him. In July 2012, the applicant and the friend sought to file a complaint against Vicky in the police station but the police informed Vicky, who came to the police station and forced the applicant to work for him. Upon the applicant’s refusal, the applicant was detained in the police station. After he was released, the applicant received phone calls of death threats. He fled to other villages out of fear and eventually to Hong Kong for protection. Details of his story are set out in paragraph 10 of the Director’s Decision and paragraphs 7 to 17 of the Board’s Decision described below.

The Director’s Decision

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

a.     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”);

b.     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

c.     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 10 January 2018, the Director refused his claim for the reason that his claim was not substantiated. The Director refused to accept his version of events as credible [20] and found that the level of risk of him being harmed or killed upon refoulement was assessed to be low [21]-[23]; that state protection would be available to him [24]-[27] and that internal relocation was an option open to him [28]-[33].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. He attended the scheduled hearing on 4 July 2018. However, the applicant chose not to answer the Board’s inquiries [25]-[26].

9.The Board observed that, before the Director, the applicant had provided different versions of events giving rise to his fear of harm from Vicky [9]-[17]. It identified several inconsistences in the applicant’s claim which required clarifications. It warned the applicant the consequence of not giving oral evidence before the Board as it would prevent the Board from assessing the credibility of his claim and might result in an unfavorable decision. Nevertheless, the applicant chose not to answer the Board’s inquiries [22].

10.The Board had concerns over several aspects of the applicant’s evidence as listed at paragraph 24 of its decision. The Board first stated the inconsistent and implausibility of the applicant’s evidence [24(i)]. It then proceeded to consider that, even if the applicant’s evidence was genuine that Vicky posed a threat of harm to him, the applicant’s non-refoulement claim was still not made out. The applicant claimed that Vicky first threatened him in July 2012 but he had stayed in his home country until May 2013. There was no suggestion that Vicky could locate him in different cities. Besides, the alleged threats happened 6 years ago and there was no evidence indicating that there was a real and substantial risk of harm [24(ii)]. Further, the Board found that internal relocation alternative was available to the applicant [24(iv)]. Yet, the Board also expressed its concern that it was unable to explore with the applicant any other factors that might contradict the Board’s above findings [25].

11.As a result, the Board was not satisfied that the applicant left India for the claimed fear from Vicky, Vicky’s father or the police [26]. For these reasons, the Board rejected the applicant’s claim on Persecution risk, BOR3 risk and BOR2 risk and dismissed his appeal [30]-[41].

Application for leave to apply for judicial review

12.The applicant filed Form 86 on 2 October 2018 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of his application, he said “… they disregard the danger and threats I face in my country should I be deported…”

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

16.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.”

17.The applicant had been duly advised to answer the Board’s questions. Yet the applicant elected not to give evidence. The Board is entitled to assess his evidence on that basis and make findings against him. Li Defan & Another v HKSAR (2002) 5 HKCFAR 320 at §27[1].

18.The applicant does not have any valid ground to challenge the Board’s Decision.

19.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.

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

CONCLUSION

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

Dated the 15 day of February 2022

	(M.O. WONG)(Ms)
	for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 15 February 2022 Satnam Singh Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 15 February 2022 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 9962/18/1/235/IN1873 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 3101/17 (formerly RBCZ 11513/17) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

[1] … it has never really been doubted that when a party to litigation fails to accept an opportunity to place before the court evidence of facts within his or her knowledge which, if they exist at all, would explain or contradict the evidence against that party, the court may more readily accept that evidence. It is not just because uncontradicted evidence is easier or safer to accept than contradicted evidence. That is almost a truism. It is because doubts about the reliability of witnesses or about the inferences to be drawn from the evidence may be more readily discounted in the absence of contradictory evidence from a party who might be expected to give or call it. In particular, in a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused.

Cites 4 cases

Cases cited in this judgment

Nupur Mst v. Director of Immigration