Harjinder Kumar v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 232/2019

[2022] HKCFI 700

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 232 of 2019

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 2 November 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, the Director of Immigration (“the Director”) is the interested party and the date of the Board’s Decision is 2 November 2018.

The applicant

4.The applicant is a national of India.  He entered Hong Kong illegally on 5 March 2014 and surrendered to the police on 18 March 2014.  On 21 March 2014, he lodged a non-refoulement claim.  The applicant’s claim was made on the basis that, if refouled, he would be harmed or killed by members of Akali Dal Party (“SAD”).

5.According to the applicant, he was a supporter of Congress Party (“CP”).  Since members of SAD and CP were political rivals, as an active supporter of CP, the applicant had been verbally insulted and threatened by the SAD members during party rallies.  In December 2008, the applicant returned to India after his employment in Dubai.  He became actively involved in assisting CP in elections.  One day, he was approached by SAD members who demanded him to switch side to help SAD.  Learning the applicant’s refusal, the SAD members attacked him.  In around January 2009, the applicant received more threats and harassments from the SAD members as he assisted CP in winning majority seats in the common election.  Nothing eventful happened in 2010 and 2011 while the applicant worked overseas.  In 2012, when the applicant returned to India, he resumed his work for the CP.  Again, he was targeted by the SAD members.  In November 2013, the applicant encountered another attack from the SAD members. Out of fear, he eventually fled to Hong Kong for protection.  Details of his claim were set out at paragraph 6 of the Director’s Decision and paragraphs 30 of the Board’s Decision as 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 22 June 2017, the Director refused his claim (“the Director’s Decision”).  The Director found that the level of risk of harm from the SAD members upon the applicant’s refoulement was assessed to be low because (i) the low intensity and frequency of past ill-treatment indicated an unlikelihood of future risk of harm [15]-[16]; (ii) state protection would be available to him [17], and (iii) internal relocation was an option open to him [18].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  The Board scheduled an oral hearing for the applicant’s appeal.  Nevertheless, the applicant failed to attend the scheduled hearing nor did he provide any written explanation and documentary evidence for his absence as requested by the Board.  Due notice had been given by the Board to the applicant, warning him that if he failed to give explanation for his absence, the Board would proceed to consider his appeal in his absence on the evidence available to it. The applicant did not respond to the notice. As a result, the Board proceeded to determine his appeal on the available evidence [7]-[10].

9.Having considered the applicant’s evidence, the Board found that the material aspects of his claim were not credible.  For example, the information provided by the applicant on the 2009 election and the officer who the applicant claimed to assist contradicted with the official data.  He had failed to provide any documentary proof to the said election [33]-[41].  The Board also disbelieved that, given the applicant’s background, the SAD would target him [42].  Further, it was implausible that the applicant would not seek help from his party if the party had won the election [43].  The Board also found that the applicant’s accounts were vague and inconsistent [45]-[48].  Thus, the Board refused to believe that the alleged attacks had occurred [51]-[52]. Alternatively, the Board stated that the alleged injuries were minor and failed to attain the level of severity and the evidence failed to show that the SAD members intended to cause serious harm or even kill him [53]-[61].  In any event, state protection and internal relocation were both available to the applicant [63]-[74]; [103].  For these reasons, the Board rejected the applicant’s claim and dismissed his appeal.  

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 24 January 2019 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, he said “… I want to reject the decision made by immigration officer…”

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 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).

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.The Board was entitled to assess his evidence and came to its conclusion on the facts of the case. The applicant does not have any valid ground to challenge the Board’s Decision. His compliant has no 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 that shows that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

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

Dated the 17^th 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