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

HCAL 652/2019

[2022] HKCFI 2418

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 652 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.The applicant applies for leave to apply for judicial review of the Decision dated 26 February 2019 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 as a visitor on 29 March 2010 and was permitted to stay until 12 April 2010. However, he did not depart and had overstayed since 13 April 2010. On 5 January 2015, he was arrested by the police. On 9 January 2015, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by members of Akali Dal (“SAD”) because he refused to join them.

5.According to the applicant, he became a supporter of Congress Party (“CP”) in 2005 under the influence of his family. His duties included promoting the CP door to door, distributing leaflets and putting up banners. The SAD was elected to be the ruling party from 2007 to 2017. Prior to the election, members of SAD had threatened the applicant to join them in order to gain votes. In December 2009, while the applicant was putting up the banners for CP, some SAD members assaulted him, resulting bruises and scratches in the applicant’s body. Shortly after, the applicant encountered another incident with the SAD members but luckily he did not get hurt. In January 2010, he was again attacked by the SAD members. This time, he sustained deep cuts and received stitches. Out of fear, he eventually fled to Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 16 January 2018 by the Director (the “Director’s Decision”) and paragraphs 8 to 13 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. The Director found that (i) a significant part of his evidence were based on hearsay information [11]; (ii) the risk of harm upon refoulement was assessed to be low because (a) the SAD members had no real intention to seriously harm or kill him [13]; (b) the alleged enemies were not powerful enough to locate him everywhere [14]; (iii) his delay in lodging the non-refoulement claim indicated no imminent threats [15]; (iv) state protection would be available to him [16]-[24]; and (v) internal relocation was a viable alternative [25]-[29].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 20 December 2018, the Board conducted an oral hearing for his appeal, during which he answered the Board’s inquires [14]-[24].

9.Having considered all the evidence, the Board was not persuaded that he had established a non-refoulement claim. While the Board found that the applicant’s oral evidence was generally consistent with his claim, it found that he had exaggerated his claims about conflict between the SAD and CP and he was unable to provide further details and that the country of origin information did not assist his claim [25]-[28]. As a result, the Board concluded that the applicant’s claim that he would be seriously harmed upon his return lacked credibility [29]-[31]. For this 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

10.The applicant has filed Form 86 dated 7 March 2019 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, the applicant enclosed a copy of the Board’s Decision without any specific ground.

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 Decisions 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 is unable to set out any valid reason 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.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

18.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 17^th 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