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

HCAL 2459/2018

[2022] HKCFI 2865

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2459 of 2018

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 24 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 on 27 December 2016 as a visitor and was permitted to stay until 10 January 2017. He did not depart and had overstayed since 11 January 2017. On 13 January 2017, he surrendered to the Immigration Department. On 16 January 2017, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by his father’s murderer Hira Singh.

5.In brevity, the applicant claimed that his father was killed by Hira in 2004 due to Hira’s displeasure to his father’s use of land. Hira belonged to the Congress Party, the ruling party in India. While Hira was arrested and convicted, he was only sentenced to six years’ imprisonment. After Hira was released from the jail, the applicant learnt that Hira would come after him as he inherited the land. 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 27 October 2017 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 applicant’s claimed fear was based on speculations [13]-[14]; (ii) state protection would be available to him [15]-[20]; and (iii) internal relocation was a viable alternative [21]-[26].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 28 June 2018, the Board conducted an oral hearing for his appeal, during which he was assisted by an interpreter [5].

9.Having considered all the evidence, the Board made the following observations. It noted that the applicant’s evidence on the details of his father’s death was inconsistent [34]. However, it accepted the applicant’s evidence that his father was killed in a fight with Hira [35]. In reviewing the documents, the Board noticed that Hira was charged with culpable homicide. It rejected the applicant’s assertion that the said charge was a result of a bribe [36]-[38]. The Board was equally unpersuaded by the applicant’s assertion that the said charge was due to the pressure posed by the Congress Party [39].

10.The Board further noted that it was implausible that Hira would intend to kill the applicant [41]. This assertion was based on rumors and gossip from unidentified villagers which the Board would not attach credence to [42].

11.For the above reasons, the Board concluded that the applicant’s claim was unsubstantiated. Thus, the applicant’s claim was rejected and his appeal dismissed.

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

12.The applicant has filed Form 86 dated 5 November 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 he did not have free legal assistance for the assessment of his case in the appeal and he was not allowed to make submissions for the BOR 2 risk assessment.

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 Decision 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 grounds in paragraph 13 above are not valid reasons to challenge the Board’s Decision. The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178 held:

“22. This Court has repeatedly held that neither the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration. We do not find anything amiss arising from lack of legal representation in the process before the Board.”

18.From the Director’s Decision and the Board’s Decision, BOR 2 risk was considered at the same time together with other risks, there is no reason for the applicant to say that he was not allowed to make submissions on BOR 2 risk before the Director or the Board.

19.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.

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

CONCLUSION

21.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 15^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