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

HCAL 193/2019

[2022] HKCFI 1055

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 193 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 20 December 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”), 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 as a visitor on 21 February 2015 and was permitted to stay until 10 March 2015.  However, he did not depart but had overstayed since 11 March 2015.  On 13 March 2015, he surrendered to the Immigration Department.  On 18 June 2015, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by a drug trafficker named Gurdev Singh Dhillon (“Gurdev”). 

5.According to the applicant, Gurdev was a famous and influential drug trafficker in his home village.  In early 2014, the applicant decided to report Gurdev’s illegal activities to the police as he could no longer tolerate that his friends and family’s lives got ruined by Gurdev.  However, the police, after listening to his complaint, asked him to go home and wait.  In mid-2014, the applicant again reported to the same police station about Gurdev.  In August or September 2014, Gurdev learnt about the applicant’s reports and sent his brother and unknown men to threaten the applicant to withdraw the reports. The applicant also reported the verbal threats to the police.  Nevertheless, in the end of 2014, the applicant was attacked by Gurdev and his followers with wooden sticks, resulting in serious injuries.  The applicant received medical treatment and subsequently reported the attack to another police station.  Out of fear, the applicant stayed with his maternal grandparents before eventually fleeing to Hong Kong for protection.  Details of his claim were set out at paragraph 6 of the Notice of Decision dated 22 October 2018 by the Director (“the Director’s Decision”) and paragraphs 9 to 11 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 refused the applicant’s claim. The Director found that the level of risk of him being harmed or killed upon refoulement was assessed to be low because (i) the alleged injuries did not attain a minimum level of severity and Gurdev did not intend to inflict serious harm on him or kill him.  Nor was Gurdev as influential as claimed to hunt the applicant down if he relocated to other areas [14]-[17]; (ii) state protection was available to him [18]-[20]; and (iii) internal relocation was an option open to him [21]-[25].  

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  He confirmed through his duty lawyer that he did not wish to attend an oral hearing before the Board and requested the Board to assess his claim on paper [5].  The Board acceded to such request and proceeded to consider his claim on paper [6].

9.The Board considered the alleged attack which resulted in the claimed serious injuries and unconsciousness of the applicant.  It found that such claim was inconsistent with the applicant’s descriptions of the injuries.  If he had been unconscious for two or three days, he should have complained of a concussion, organ injuries or broken bone.  Nevertheless, he only suffered bruises and scratches and was only given painkillers at the hospital [33]. Thus, there was no evidence suggesting that he was seriously harmed from the alleged attack.  Further, the Board found that the applicant’s reports to the police were based on hearsay evidence and the law enforcement could not operate on hearsay information only.  Meanwhile, on the applicant’s evidence, the police raided Gurdev’s house upon receiving the complaints which indicated an operating criminal justice system [35]-[37].  In addition, the Board found that there was no state involvement [39].  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 21 January 2019 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, he disagreed with the Board’s Decision. He does not want to go back to his country because it is dangerous.

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.The applicant has not raised any valid ground to challenge the Board’s Decision.

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

Dated the 14^th day of April 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