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

HCAL 2284/2018

[2022] HKCFI 2290

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2284 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 applies for leave to apply for judicial review of the Decision dated 15 October 2018 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 illegally on 27 October 2015 and was arrested by the police the next day for being an illegal immigrant.  On 31 October 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 parental uncle Bikar Singh (“Bikar”).

5.According to the applicant, his fear of harm originated from a land dispute with Bikar which started in 2012.  Bikar intended to use the land of the applicant’s grandfather to pledge for more loans from the moneylenders. The applicant’s father advised the grandfather against Bikar’s idea.  The arguments escalated to physical attacks and fights in 2013.  In early 2014, during a reconciliation meeting in the village council, Bikar assaulted the applicant for his presence at the meeting.  Thereafter, apart from the verbal threats, Bikar attacked the applicant twice.  The applicant’s report to the police was of no avail due to Bikar’s political connections.  Out of fear, the applicant fled to Hong Kong for protection.  Details of his claim are set out at paragraph 7 of the Notice of Decision dated 19 July 2017 by the Director (the “Director’s Decision”) and paragraphs 3 to 19 of the Board’s Decision.

The Director’s Decision

6.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC 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, the Director dismissed the applicant’s claim.  In elaboration, the Director found that (i) the dispute with Bikar was a private dispute without state involvement [12]; (ii) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [13]-[14]; (iii) state protection would be available [15]-[17]; and (iv) internal relocation was also a viable alternative [18].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 7 September 2018, the Board conducted an oral hearing for his appeal, during which he answered the Board’s inquiries [21].

9.The Board considered the country of origin information (“COI”) and the relevant principles guiding the assessment of the applicant’s claim [26]-[27]. It noticed that the applicant advanced certain aspects that were not explored before the Director and also identified several discrepancies in the evidence in relation to the material aspects of his claim, such as the alleged assaults [33]-[43].  The Board therefore cast grave doubts on the applicant’s credibility [44].

10.In evaluating the individual grounds, the Board further noted that there was no state involvement nor acquiescence [48]; that, as shown in the COI, state protection and internal relocation were viable options [52]-[56]. 

11.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

12.The applicant has filed Form 86 dated 22 October 2018 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of his application, the applicant said that he disagreed with the Board 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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

15.The Court will bear in mind that the Board’s Decisions 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.Those reasons in paragraph 13 above are not valid reasons to challenge the Board’s Decision.

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

CONCLUSION

20.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 3^rd day of August 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