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

HCAL 1927/2020

[2022] HKCFI 1690

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1927 of 2020

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 applies for leave to apply for judicial review of the Decision dated 24 August 2020 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.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.

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 22 October 2013 as a visitor and was permitted to stay until 5 November 2013. He did not depart and had overstayed since 6 November 2013. On 22 May 2014, he lodged a non-refoulement claim. However, since he failed to submit the non-refoulement claim form within time limit, his non-refoulement claim was deemed withdrawn on 1 August 2016. On 16 February 2019, the applicant wrote to request to reopen his non-refoulement claim. His request was acceded to by the Immigration Department on 19 March 2019.

5.The applicant’s claim was made on the basis that, if refouled, he would be harmed or killed by his neighbour Sona and Sona’s father Ginda, who were members of the Shiromani Akali Dal Party (“SAD”), because of a Congress Party (“CP”) poster on his studio window. According to the applicant, he operated a photography studio in 2011. In around 2012 or early 2013, he noticed that someone posted a CP poster asking people to vote for CP on his studio window. He did not remove the poster as it would damage his window. Sona then accused him of being a supporter of CP. The next morning, the applicant was attacked from behind by an iron rod. He was beaten to unconsciousness by Sona and Ginda. Thereafter, he complained to the police. A few days later, the village head came to mediate the dispute and they reached an agreement that Sona would not trouble the applicant who in return would withdraw the complaint. Nevertheless, the applicant still feared for his safety as Sona was a murderer and SAD won the election and became more influential. While he was in Hong Kong, his mother informed him that Sona was still looking for him. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 20 May 2019 by the Director (the “Director’s Decision”) and paragraph 14 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:

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

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“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”).

7.By way of the Director’s Decision dated 20 May 2019 (“the Director’s Decision”), the Director dismissed the applicant’s claim on the basis that the level of risk of harm was assessed to be low. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [12]-[14]; (ii) state protection would be available to him [15]-[17]; and (iii) internal relocation was also a viable option [18]-[22].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 10 August 2020, the Board conducted an oral hearing for his appeal, during which he supplemented his claim. Before the Board, he informed the adjudicator that his family were now in Canada. Prior to their departure to Canada, his brother was attacked twice by Sona. He further clarified that he was only attacked once by Sona but not by Ginda [16].

9.The Board noticed that the applicant’s evidence changed in relation to the assault by Sona. He provided inconsistent dates of the incident and his explanation was unacceptable [30]. It also considered the applicant’s evidence on the attack to be exaggerating [31]. Meanwhile, the Board doubted that the village head, as a SAD member, would assist the applicant if the dispute originated from the applicant’s refusal to take off the CP poster [32]. Further, the Board found that the applicant’s allegation against Sona as a murderer was a bare assertion [33]. There was also no evidence that Sona continued to harass him after the assault [34]-[36]. As to the assault against his brother, the Board considered that such allegation was without evidential support [37]-[38]. Besides, the country of origin information showed that state protection and internal relocation would be available to the applicant [42]-[46]; [61]-[64].

10.For the aforesaid reasons, the Board rejected the applicant’s claim and dismissed his appeal.

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

11.The applicant has filed Form 86 dated 25 September 2020 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of his application, the applicant said the Decision was unfair.

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, §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.Those grounds above are not valid reasons to challenge the Board’s Decision.

17.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.

18.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

19.I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 7^th day of June 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