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

HCAL 911/2019

[2022] HKCFI 1287

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 911 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 21 March 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 decided to 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 on 16 December 2014 but did not depart within the time limit.  He had overstayed since 31 December 2014.  On 6 January 2015, he surrendered to the Immigration Department.  On 17 March 2015, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by Rinko and Suraj who were members of Shiromani Akali Dal Party (“SAD”).

5.According to the applicant, he was a doctor and had been a supporter of Indian National Congress (“INC”) since 1981 or 1982.  He was active in promoting the INC.  In early 2000, SAD members often visited his clinic and told him to join the SAD.  He refused. After his sons joined the INC, the SAD members also harassed them.  On one occasion in 2010, the applicant’s elder son was beaten by Rinko, Suraj and SAD members many times.  His elder son escaped to another country.  Afterwards, the applicant’s younger son became the target and was also attacked by the SAD members.  Unable to cope with the mental pressure, his younger son also left India.  Since then, the applicant was targeted by the SAD.  In around July or August 2014, he was attacked by the SAD members with wooden sticks and sustained injuries that required hospitalization.  Out of fear, the applicant eventually fled to Hong Kong for protection.  Details of his claim are set out at paragraph 8 of the Notice of Decision dated 27 June 2018 by the Director (the “Director’s Decision”) and paragraphs 4 to 24 of the Board’s Decision as described below.   

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 dismissed the applicant’s claim.  The Director refused to accept that he would face any real risk of harm upon refoulement because (i) low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [13]; (ii) state protection would be available to the applicant [14]; and (iii) internal relocation was a viable alternative for him [15]. 

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  The Board scheduled an oral hearing on 4 October 2018 for his appeal, during which he gave oral evidence [25].

9.Having considered the applicant’s evidence, the Board found that they were merely assertions.  In particular, the Board noticed that the applicant’s evidence about his popularity in the INC did not sit well with the objective evidence and devoid of logics.  It was also difficult to comprehend why the applicant did not seek help from his own party when they were attacked by the SAD members.  The applicant’s version that he could not relocate to other areas in India contradicted with his own evidence that he hid in his brother-in-law’s place without encountering any harms.  His allegation of police corruption was also inconsistent with the country of origin information (“COI”) [38].  For these reasons, the Board rejected the applicant’s version of events [39]. 

10.In assessing the individual grounds, the Board observed that the applicant and his sons were not physically or psychiatrically harmed to a level of severity [41]-[44].  There were also no evidence of state involvement and COI showed that state protection was available to him [45]-[53].  In any event, internal relocation was an option open to the applicant [71]-[74].

11.For the aforesaid reasons, 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 3 April 2019 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of his application, he said he was not satisfied with the Board’s Decision and he had problem in his 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 had set out the reasons for its findings. In any event, his sons’ experiences are not personal to the applicant.

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 to apply for judicial review.  Accordingly, I dismiss his application.

Dated the 10^th 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