Case Document

100%Judiciary

HCAL 2526/2018

[2022] HKCFI 3268

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2526 of 2018

BETWEEN
	Matharu Jaspreet Singh	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 5 November 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”), I shall deal with his application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant is a national of India. He entered Hong Kong illegally on 17 April 2015 and surrendered to the Immigration Department on 5 May 2015. On 31 July 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 uncle Charan Singh due to a land dispute.

5.According to the applicant, Charan was a supporter of Shiromani Akali Dal party (“SAD”) which was the ruling party. He was also rich and connected with the leader of SAD. After the applicant’s grandfather passed away in 2000, his children inherited their respective pieces of land. In August 2012, the applicant’s father, together with the uncles other than Charan, sold their pieces of land. Charan was unhappy about the arrangement. Thereafter, Charan not only threatened the applicant’s father but also attacked the applicant on two occasions in mid-2014 and January 2015. Out of fear, the applicant fled to Hong Kong for protection. Details of his claim are set out at paragraph 8 of the Notice of Decision dated 8 March 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 level of past ill-treatments indicated an unlikelihood of future risk of harm [14]; (ii) state protection would be available to him [15]-[20]; and (iii) internal relocation was a viable alternative [21]-[23].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. The original hearing was scheduled to be on 18 July 2018 but adjourned to 12 September 2018 due to the applicant’s medical problem. On the date of the resumed hearing, the applicant gave evidence before the Board [23]-[53].

9.Having considered the applicant’s claim, the Board found that his claim was untruthful [58]. In particular, the Board noted that there were significant inconsistencies in his evidence. For example, the applicant only raised for the first time that Charan threatened him because he persuaded his father to sell the land. Nevertheless, the Board questioned this assertion as it was the applicant’s father who owned and sold the land, as well as received the money. It would be implausible for Charan to suddenly change the target from the applicant’s father to the applicant [60]-[62]. Also, the applicant contradicted himself in the details of the attacks [63]-[64];[67]-[69]. Meanwhile, the Board noticed that the applicant was inconsistent about the injuries sustained [66]. In addition, the Board emphasized that the applicant failed to produce any documentary evidence for the ownership of the land and, even if his father indeed owned the land, it was not credible that Charan would pursue the applicant instead [73]. Similarly, the applicant failed to prove that Charan was influential and powerful [75].

10.In the circumstances, the Board rejected the applicant’s claim on the basis of lack of credibility 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 November 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 he cannot go back to his country and asked the Court to help him stay in Hong Kong.

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.There is no valid reason from the applicant 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 25^th day of October 2022

(Chung Lai Fan, Christine)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 25 October 2022 Matharu Jaspreet Singh Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 25 October 2022 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 10846/18/3/298/IN2080 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 214/18 (Formerly RBCZ 13037/15) [T6 S135] Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)