Case Document

100%Judiciary

HCAL 2842/2018

[2022] HKCFI 659

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2842 of 2018

BETWEEN
	Gursab 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 decision dated 22 November 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s BOR2 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 attempted to enter Hong Kong on 29 January 2014 but was refused permission to land. He lodged a non-refoulement claim the next day. The applicant’s claim was made on the basis that, if refouled, he would be harmed or killed by his maternal uncles because of a land dispute.

5.According to the applicant, his maternal uncles had intended to snatch the land owned by his father since he was at a young age. They attacked his father once and, while the father reported to the police, no one was arrested. After the attack, the applicant moved to Tarn-taran where he was attacked by some black people and suffered injuries. From 2011 to 2013, the applicant lived in Jordan. He heard from his family that Sarabjeet Singh who gave the applicant shelter in Tarn-taran was killed by his maternal uncles. The applicant then returned to India to take care of Sarabjeet’s young children. Six months later, the applicant was attacked by some masked attackers, during which his head was badly injured. Thereafter, out of fear, he fled to Hong Kong for protection. Details of his claim are set out in paragraph 6 of the Notice of Decision dated 16 January 2015 by the Director (“the Director’s First Decision”) and paragraphs 5 to 11 of the decision of the Board dated 29 December 2016 (“the Board’s First Decision”) described below.

The Director’s Decisions

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

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”); and

d.  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”);

7.By the Director’s First Decision, the Director concluded that the level of risk of harm from the applicant’s maternal uncles upon the applicant’s refoulement was assessed to be low because (i) the low intensity and frequency of past ill-treatment from the maternal uncles was indicative of a small future risk of harm upon his return [15]; (ii) state protection would be available to him [16], and (iii) that internal relocation was an option open to him [17]-[22]. In the Notice of Further Decision dated 8 February 2017, the Director also rejected the applicant’s claim on BOR2 risk (“the Director’s Second Decision”) for the reason that there was no evidence to show that his right to life under BOR 2 would be violated upon his return.

The Board’s Decisions

8.The applicant first appealed the Director’s First Decision to the Board. On 24 September 2015, the Board conducted an oral hearing for his appeal, during which the applicant gave evidence and was cross-examined [12].

9.Having considered the applicant’s claim and evidence, the Board dismissed his appeal. In assessing the Torture risk, the Board noted the inconsistencies and discrepancies between the applicant’s written and oral evidence [23]-[27]. The Board therefore concluded that the applicant was not a credible witness [28]. It further evaluated the country of origin information (“COI”) and found that state protection was available to the applicant [29]-[30]. As a result, the Board rejected his claim on Torture risk. For these reasons, the Board also rejected his claim on Persecution risk and BOR3 risk [37]-[45]. This is the Board’s First Decision. The applicant did not apply for judicial review of this Decision.

10.Insofar as the applicant’s appeal against the Director’s Second Decision is concerned, the Board considered that, since the applicant failed to adduce any additional facts and information, it was unnecessary to hold an oral hearing for this appeal and proceeded to dispose it on paper [5]-[6]. In light of the COI, the Board concluded that effective state protection was available to the applicant [14]-[17] and rejected his claim on BOR2 risk. By way of the Board’s BOR2 Decision, the Board also rejected his appeal against the Director’s Second Decision.

Application for leave to apply for judicial review

11.The applicant filed Form 86 on 11 December 2018 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of his application, he said “ I would like to judicial review against the Decision made by Director of Immigration was unfair and unreasonable. My life is in danger in India. I might get killed if sent back to India …” Obviously, he should be referring to the Board’s BOR2 Decision, which he had set out in Form 86.

DISCUSSION

13.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).

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

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 had considered the facts and findings in its First Decision in addition to the materials submitted by the applicant in support of his appeal against the Director’s Second Decision. The Board had, therefore, taken a holistic view of the applicant’s case before making its BOR2 Decision.

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

18.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.

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

CONCLUSION

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

Dated the 8^th day of March 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 8 March 2022 Gursab 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 8 March 2022 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 841/15/1/192/IN240; BOR 228/17/2/137/IN67 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 167/14 and RBCZ 9000097/17 (Formerly RBCZ-43/14) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)