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

HCAL 212/2019

[2022] HKCFI 1208

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 212 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 11 January 2019 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”), I shall deal with his application 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 24 December 2015 and surrendered to the Immigration Department on 28 December 2015.  By way of written representations dated 13, 19 and 25 April 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 parental uncle Jagdish Singh (“JS”). 

5.According to the applicant, his father and JS both inherited one piece of land from his grandfather.  In around 2007, JS started to quarrel with the applicant’s father for the unfair distribution of inheritance, attempting to occupy the land of the applicant’s father.  The quarrels escalated to threats and later it was said that JS murdered the applicant’s brother in a traffic accident.  The applicant’s family had no option but to compensate JS with money.  While the money kept JS quiet for two years, in mid-2015, JS started to demand for more.  In July or August 2015, JS attacked the applicant with iron rods and hockey sticks, causing the applicant a fractured right thigh bone. Out of fear, he fled to Hong Kong for protection.  Details of his claim were set out at paragraph 7 of the Notice of Decision dated 25 July 2017 by the Director (“the Director’s Decision”) and paragraph 23 of the Board’s Decision.      

The Director’s Decision

6.The Director considered the applicant’s claim in relation to the following risks:

(1)   risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(2)   risk of violation of the right of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (“BOR 2 risk”);

(3)   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

(4)   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 way of the Director’s Decision, the Director refused the applicant’s claim.  The Director refused to accept the applicant would face any real risk of being harm or killed upon refoulement because (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [13]-[15]; (ii) state protection would be available to him [16]-[19]; and (iii) internal relocation was also an option open to him [20]-[21].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  The Board scheduled an oral hearing on 16 November 2018 for his appeal.  Both parties were legally represented. 

9.The Board considered the applicant’s manner in giving oral evidence unsatisfactory as he was invasive and his evidence was inherently contradictory.  The Board listed out the material inconsistencies in the applicant’s evidence at paragraph 29 of the Board’s Decision.  The alarming concerns could be summarized as follows: the applicant was inconsistent as to how the land was passed on to his father; he exaggerated the power and influence of JS’s political affiliation; his evidence about his brother’s death was based on hearsay information; a long period of time elapsed since the family’s conflict with JS; he failed to provide any cogent explanation as to why he was not killed by his uncle during the attack; he did not attempt to obtain any medical evidence in support of his claim; the subject land was still registered under his father’s name but his father was not subjected to JS’s attack; and the applicant confirmed that the dispute was private without state involvement.  The Board also rejected the applicant’s claim that he could not relocate to other areas in India [35];[56].

10.For the aforesaid reasons, the Board refused to accept the applicant as a witness of truth [36].  Even on the applicant’s evidence, the Board found that the alleged injuries failed to attain the minimum level of severity; that his subsequent trips within and outside India showed that JS was not powerful enough to locate him anywhere; and that the dispute was private without state involvement [40].

11.Thus, the Board rejected the applicant’s claim and dismissed his appeal.    

Application for leave to apply for judicial review

12.The applicant filed Form 86 on 23 January 2019 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of his application, he said, “I am not satisfied with the decision given by appeal board because I have problem in my own country…”

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 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).

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 has not raised any valid ground to challenge the Board’s Decision. The Board has given reasons in support of its 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 for the applicant apply for judicial review.  Accordingly, I dismiss his application.

Dated the 3^rd day of May 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