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

HCAL 2261/2018

[2022] HKCFI 1358

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2261 of 2018

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.The applicant has put down the date of the Decision, which he sought relief as 16 January 2014. However, there is no such document with this date. This Court has to assume, in the circumstances, that he had put the wrong date of the Board’s Decision, which is 17 March 2017 (the “Board’s Decision”). This error will be rectified on the Court’s own motion below.

2.The applicant applies for leave to apply for judicial review of the Board’s Decision.

3.The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with his application on paper.

4.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 relief sought is for judicial review of the Board’s Decision.

The applicant

5.The applicant is a national of India. He entered Hong Kong on 19 December 2013. He was permitted to stay until 2 January 2014. He overstayed and was arrested by the police on 14 January 2014 and was referred to the Immigration Department. He lodged a non-refoulement claim by written representation of 16 January 2014. His claim was made on the basis that, if refouled, he would be harmed or killed by the family of a girl named Suman because they had grudge against him for having intimate relationship with Suman.

6.According to the applicant, he and Suman were classmates and they fell in love with one another. They were of different religions, himself of Sikhs and Suman of Muslims. Their families did not approve their relationship. One night in 2013, he went to Suman’s bedroom. Whilst they were having sexual intercourse, Suman’s father saw them. He and other members of the family broke into Suman’s room. They pulled him out into the courtyard where they assaulted him with fists, kicks and wooden sticks. He was tied to a poll where he had stayed for 3 hours. He freed himself and left. He had to receive medical treatment for his injuries to his belly and back. He did not report to police for fear that he might be charged with offence for getting into Suman’s room to have sexual intercourse with her. One afternoon in May 2013, he met Suman’s brother, who was with his friends. Suman’s brother and his friends attacked him and his friends. He was injured again and had to receive medical treatment. He left his home and lived in his aunt’s premises in Halwara for one month in order to avoid Suman’s brother. He then moved to live in Chintpurni, where he saw Suman’s brother. He returned to his home town again. Then he went to New Delhi and lived in a Sikh temple for around 2 months. He came across Suman’s brother with his friends in New Delhi. Upon advice of his friend, he left India for Hong Kong on 18 December 2013. Details of his story are set out in paragraph 6 of the Director’s Decision described below.

The Director’s Decisions

7.The Director considered the applicant’s claim 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”).

8.By a Notice of Decision dated 13 November 2015, the Director refused the applicant’s claim on Torture risk, BOR 3 risk and Persecution risk. The Director found that there were no substantial reasons to believe that Suman’s family would harm him and that his perceived fear was real and foreseeable in view of the past low intensity and frequency of the past ill-treatment inflicted upon him by Suman’s family [11-12]; that state protection was available to him [13]; and that internal relocation was an option open to him [14]. By Notice of Further Decision dated 3 November 2016, the Director rejected his claim on BOR 2 risk for the reason that he was unable to establish that his right to life would be violated upon his return to India.

The Board’s Decision

9.The applicant appealed the Director’s Decisions to the Board. On 14 December 2016, the Board conducted an oral hearing for his appeal.

10.The adjudicator explained the purpose of the hearing. The applicant refused to give evidence or to answer any questions put to him. The adjudicator further advised him that if he did not give evidence, he might not be able to prove his case. He insisted upon his refusal of giving evidence. He simply told the Board that as he was detained in the Immigration Department, he was unable to obtain additional information from his family in India and that his friend told him that Suman had committed suicide, which he did not believe. The Board gave no weight to his evidence. The Board then proceeded to evaluate his evidence on paper and raised queries in relation to a number of incidents which the Board found unreasonable to believe without further explanation. It finally found that the applicant had not been able to substantiate his claim that he had the perceived fear of serious physical harm from Suman’s family while he was in India [37]. The Board further found that the likelihood of him being harmed upon his return to be very low and that internal relocation and state protection were also available to him, further lowering his risk of being harmed [39].

Application for leave to apply for judicial review of the Board’s Decision

11.The applicant has filed Form 86 dated 18 October 2018 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of his application, the applicant said he was dissatisfied with the Board’s Decision and he did not want to go back to India.

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 Decisions 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.I have noted that the applicant had refused to provide further information to the Board upon request. He cannot complain that the Board did not accept his evidence.

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. In my view, high standards of fairness give 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.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

22.I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision.

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