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

HCAL 2344/2018

[2022] HKCFI 576

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2344 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:

1.This is the applicant’s application for leave to apply for judicial review of the Decision dated 5 October 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 illegally on 27 December 2015 and surrendered to the Immigration Department two days later.  On 1 August 2016, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by his creditor because he defaulted the loan payment. 

5.According to the applicant, he started running his business in 2012.  In need of capitals, he borrowed money from one Mr. Singh.  However, his business suffered a setback in 2014, resulting in a loss and incapability to repay Singh’s loan. When Singh came to the applicant’s house demanding for repayment, they got into a fight.  The next day, Singh brought police to the applicant’s house.  While the applicant was not at home, his parents informed him that the police wanted to frame him for offences if he failed to repay the loan.  Later, the applicant’s parents were fed up with the arguments with him and disowned him. Nevertheless, Singh continued to visit his family home and harassed his parents, threatening to kill them.  His parents filed report to the police against Singh but the complaint was of no avail as Singh was well-connected with the police.  Out of fear, the applicant eventually fled to Hong Kong for protection.  Details of his claim were set out at paragraph 7 of the Director’s Decision and paragraphs 16 to 38 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.In the Notice of Decision dated 31 January 2018 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director found that there was no substantial ground for believing that there would be any real and substantial risk of him being harmed or killed upon refoulement [14]-[15]; that reasonable 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 against the Director’s Decision to the Board.  An oral hearing was held on 20 August 2018, during which the applicant answered the Board’s inquires.    

9.The Board considered the applicant’s claim on all applicable grounds.  In assessing the Torture risk, the Board observed that it was only a loan dispute between the applicant and Singh.  The allegation that the police would frame him with false cases was purely hearsay.  There was no basis for the applicant to allege that the police would harm him.  Further, the applicant was never hurt by Singh or his associates.  His claim that the police would side with Singh was also speculative [42]-[50].  For these reasons, the Board rejected his claim on all applicable grounds.  In any event, the Board found that internal relocation was available to the applicant [57]-[61]. 

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 25 October 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 Director’s [Board’s] Decision was unreasonable in that he failed to consider all the matters in his claim and he did not give adequate reason for his Decision.

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. His complaints are his opinions and comments without any evidence in support.

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 2^nd day of March 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