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

HCAL 2263/2018

[2022] HKCFI 2558

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2263 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 26 September 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 considered 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 14 April 2015 as a visitor and was permitted to stay until 28 April 2015.  He did not depart and had overstayed since 29 April 2015.  On 4 May 2015, he surrendered to the Immigration Department.  On 9 September 2015 and 18 September 2015 respectively, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by Balkar Singh and Balkar’s associates because he reported their crime, i.e., drug trafficking, to the Indian police.

5.According to the applicant, his shop was next to the garment shop of Balkar.  In March or April 2013, he noticed that Balkar, Balkar’s son Jyotie and their associates were selling drugs to youngsters.  There were fights and chaos outside the shop.  Thus, the applicant filed the first information report (“FIR”) to the police.  Balkar and his associates were detained for a day.  A few weeks later, Balkar vandalized the applicant’s shop.  After the applicant’s second report to the police, Balkar and his associates were detained for 15 days.  Thereafter, the applicant received threats from Balkar and his associates.  In the end of 2013, Balkar was sentenced to 10 years’ imprisonment.  In 2014, the applicant’s father was attacked by Jyotie and the applicant also encountered Jyotie in 2015 but successfully fled from the scene.  While the applicant escaped to Hong Kong, he learnt that his father was attacked by Jyotie twice in 2016 and 2017 and their shop was also vandalized. Out of fear, the applicant decided to stay in Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 19 January 2018 by the Director (the “Director’s Decision”) and paragraphs 29 to 41 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 on the basis that the claimed risk was unlikely to materialize.  In elaboration, the Director found that (i) the applicant was never inflicted with physical harms [11]; (ii) the information provided by the applicant failed to substantiate his non-refoulement claim [12]-[56]; (iii) there was no state involvement [57]-[77]; and (iv) internal relocation was also a viable alternative [78]-[92].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 21 June 2018, the Board conducted an oral hearing for his appeal, during which he was assisted by an interpreter [5].

9.Having considered the evidence, the Board found that the applicant’s claim lacked credibility [45].  In particular, the Board considered that he gave significant inconsistent evidence in relation to several aspects of his claim.  For example, he gave vague and conflicting evidence as to the time of filing the FIR against Balkar [46]-[47]; he was inconsistent as to whether the police took any action against Balkar after the FIR [48]; he gave contradictory replies as to what happened after Balkar was released [49]; he also contradicted himself as to whether he was present while his father was attacked [50]; while he claimed before the Board that he was physically injured by Balkar, such evidence was not mentioned in his non-refoulement claim form [51]; his evidence on the location he escaped to prior to Hong Kong also contained discrepancies [52]; and he was unable to provide consistent details of Balkar [53].

10.For these 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 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 his life will be in danger if he returns to India. He further said: “If you can take responsibility of my life, then I can go back. If anything happen to me [in] India, then you will be responsible.”

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.The applicant has not given any valid reason to challenge the Board’s Decision. He is not entitled to any guarantee from the Hong Kong Government for his safety in India.

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 1^st day of September 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