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

HCAL 2539/2018

[2022] HKCFI 3564

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2539 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 6 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”), the application is dealt with 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 last entered Hong Kong on 5 June 2013 and was permitted to stay as a visitor until 12 June 2013. However, he did not depart and had overstayed since 13 June 2013. On 2 July 2013, he surrendered to the Immigration Department. On 4 June 2014, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by people from two moneylenders, Himalayan Finance and Swarnabhumi (the “Creditors”) as he defaulted the loan payments. The other source of fear also originated from this loan as the applicant’s guarantor Rajiv might sue him if he failed to repay the loan.

5.According to the applicant, upon the advice of Rajiv, he borrowed loans from the Creditors respectively to expand his garment business in late 2011. For the ensuing 1.5 years, he was able to repay the installments. Starting in early 2013, he defaulted the loan repayments. Rajiv refused to lend him the money to settle the loans. On two occasions, the Creditors sent people to threaten the applicant and chased him for the repayments. Out of fear, he fled to Hong Kong for protection. While he was in Hong Kong, he learnt that his wife had been missing since 21 November 2016, an incident that he suspected to be related to the Creditors. Details of his claim are set out at paragraph 15 of the Notice of Decision dated 14 February 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 his claimed fear of harm from the Creditors was groundless. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm and the possibility of him being imprisoned due to a civil liability was assessed to be low [21]-[41]; (ii) state protection would be available to him [42]-[46]; and (iii) internal relocation was a viable option [47].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 7 August 2018, the Board conducted an oral hearing for his appeal, during which he answered the inquires with the assistance of an interpreter [6].

9.Having considered the evidence, the Board made the following findings. The Board noticed that the applicant’s evidence on the original intention to borrow the loans lacked details [50]. Besides, despite stating that he signed the loan agreements, the applicant failed to provide documents in support [51]. The Board refused to accept his explanation of why he failed to produce the loan agreements [52]. Meanwhile, the applicant’s evidence on Rajiv’s role in the arrangements was inconsistent [53]. Also, his evidence on the terms of the loan and loan payments was contradictory [54]. Further, the applicant’s evidence on the subsequent events after his default and on his attempt to repay the loan was inconsistent and unpersuasive [55]-[56].

10.In light of the aforesaid unsatisfactory evidence, 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 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 enclosed the Board’s Decision without raising any ground.

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 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 23^rd day of November 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