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

HCAL 690/2019

[2022] HKCFI 2751

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 690 OF 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;  or
	consideration of the documents and oral submissions by the Applicant 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 25 January 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 last entered Hong Kong as a visitor on 16 March 2013 and was permitted to stay until 30 March 2013. He did not depart and had overstayed since 31 March 2013. On 20 October 2016, he surrendered to the Immigration Department. On 18 November 2016, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by Mohit Kumar (“MK”).

5.According to the applicant, in 2003, he borrowed a loan from MK with a view to transform his family farmland. To secure the loan, the applicant gave MK the title deed of the farmland. However, the bird flu and animal diseases caused poor productions of the farmland. He defaulted the repayments. From 2006 to 2007, MK sent his people to occupy the farmland by force. Both the applicant and his father were assaulted. They reported to the police and the attempted negotiation with MK failed. The applicant’s father filed a claim with the lands tribunal. MK was irritated by the claim and sent people to torture the applicant. He also verbally threatened the applicant. On the day of the land tribunal hearing, the applicant and his father were attacked by MK and the followers. In addition, MK also filed a false case against the applicant. Out of fear, the applicant fled to Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 16 November 2018 by the Director (the “Director’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 as the level of risk of harm upon refoulement was assessed to be low. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated no real or foreseeable risk of harm [12]; (ii) even if the alleged risk of harm was established, it should have dissipated after such a long lapse of time [13]; (iii) MK and his people had no resource to locate him all over India [14]; (iv) state protection would be available to him [16]; and (v) internal relocation was a viable alternative [17].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. By way of letters dated 28 December 2018 and 1 January 2019, the applicant confirmed to the Board that he did not request an oral hearing for his appeal [4.1].

9.The Board proceeded to consider the applicant’s claim on paper. It first observed that some material aspects of the applicant’s claim were vague and inherently contradictory [2]-[3.5]. In particular, the Board noted that the applicant was unable to name MK’s alleged connection with the political group; that he was vague about the details of the assaults; that his evidence contradicts with the country of origin information (“COI”); that his evidence on the events were inherently inconsistent and that his delay in lodging the non-refoulement claim was also detrimental [5.1]-[7]. In assessing the individual grounds, the Board found that it was a private dispute without state involvement [12]-[14]; that the alleged injuries did not have sufficient severity [18]; that COI showed that internal relocation was a viable option [22]-[27].

10.For the above 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 12 March 2019 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 does not agree with the Board’s Decision and his life will be in danger if he returns to his country.

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 Decision 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 in paragraph 12 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 6^th 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