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

HCAL 757/2019

[2022] HKCFI 1336

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 757 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 February 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 on 6 April 2015 as a visitor and was permitted to stay until 20 April 2015. He did not depart and had overstayed since 21 April 2015. On 21 April 2015, he surrendered to the Immigration Department. On 26 June 2015 and 18 August 2015, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by his uncle and cousins.

5.In brevity, the applicant claimed that his uncle was well-connected with the political groups. In early 2015, his uncle intended to occupy his family land forcibly. Countered with the applicant’s resistance, his uncle and cousins beat him with a stick. He was injured and hospitalized. Their report to the police was of no avail because of his uncle’s status. While the applicant relocated to another city, he was again attacked by his uncle and cousins. Out of fear, he fled to Hong Kong for protection. Details of the applicant’s claim are set out at paragraph 7 of the Notice of Decision dated 13 March 2018 by the Director (the “Director’s Decision”) and paragraphs 7 to 10 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 his claim. The Director refused to accept that he would face any real risk of harm upon refoulement because (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [12]-[14]; (ii) state protection was available to him [15]-[18]; and (iii) internal relocation was a viable option [19]-[21].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. The Board scheduled an oral hearing on 29 November 2018 for his appeal. At the hearing, the applicant was assisted with an interpreter. He was unwell but confirmed that he was able to carry on. However, he refused to answer the Board’s questions. The Board warned him that there was insufficient evidence for it to make a positive decision for his case and there were concerns in his evidence which needed clarifications. Regardless of the Board’s concerns, the applicant insisted on his refusal. As a result, the Board ended the oral hearing and proceeded to consider his appeal on paper [6].

9.The Board noted that the applicant’s initial statement was brief and his interview with the Director was also brief and not effectively probative. In this light, the applicant’s account consisted only a limited number of mere assertions [22]. Nevertheless, the applicant declined to provide clarifications to assist the Board.

10.The Board considered that the applicant was obliged, but failed to cooperate and provide all necessary information under his duty of joint endeavor [24]-[25]. Hindered by the uncertainties, as listed at paragraphs 27 to 28, the Board found that it was unable to attach any credence to the applicant’s evidence and thus rejected his claim and dismissed his appeal.

Application for leave to apply for judicial review

11.The applicant filed Form 86 on 19 March 2019 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of his application, he repeated his facts of being beaten up by his uncle and his cousins in his country.

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 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).

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.As the applicant refused to answer the Board’s questions. The adjudicator had told him the issues that he wanted to clarify with him. The Board was entitled to assess his evidence on that basis. On the issue of whether the Board can draw adverse inference against the applicant, resulting in discrediting his evidence as a whole under the higher standards of fairness basis, the following authorities have to be taken into consideration.

17.The Court of Appeal in TK v Michael C Jenkins Esq and Director of Immigration CACV 286/2011, 21 November 2012 [2013] 1 HKC, 526, CA, Hon. Cheung CJHC, Stock VP and Fok JA held:

“25. High standards of fairness certainly do not entitle the torture claimant, having stated a claim, “to simply sit back and require the Director to disprove it”. The exercise of determining whether a claim made under article 3(1) of the CAT is valid must be one of “joint endeavour”. CH v Director of Immigration [2011] 3 HKLRD 101, para 47”

18.The applicant is obligated under the Ordinance to cooperate with the Director and the Board for the assessment of his claim. See section 37ZA (1)(a).[1] As the law imposes an obligation on him to make prompt and full disclosure of all material facts in support of the claim, his refusal to do so is in contravention of the statutory provision and he must bear the consequences. It is not difficult to understand the consequence of the Board not believing his evidence if he refused to answer the questions put by the Board to him. High standards of fairness gives no exemption to the applicant for the compliance of the Ordinance.

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

20.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.

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

CONCLUSION

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

Dated the 19^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