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

HCAL 2497/2018

[2022] HKCFI 3624

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2497 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 1 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 entered Hong Kong illegally on 20 August 2015 and was arrested by the police on the same date. On 22 August 2015, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by the supporters of Bharatiya Janata Party (“BJP”) because he refused to join them and also severely injured one of their supporters during a fight.

5.According to the applicant, he was a supporter for the Congress Party (“CP”). One day in around October or November 2014, he and his fellow supporters were approached by some BJP supporters. They asked the applicant and his friends to join them. The applicant refused and they got into a fight. In defending himself, the applicant injured one of the BJP supporters. The next day, around 20 to 22 BJP supporters visited the applicant’s shop, carrying wooden sticks. The applicant’s shop was vandalized and he was attacked. Out of fear, the applicant escaped to other villages before eventually fleeing to Hong Kong for protection. Thereafter, the applicant’s mother also left for another village. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 30 November 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 because it was unlikely that he would face any real or substantial risk of harm upon refoulement. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [15]-[16]; (ii) state protection would be available to him [17]-[19]; and (iii) internal relocation was a viable alternative [20]-[22].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 17 September 2018, the Board conducted an oral hearing for his appeal, during which he was assisted by an interpreter [5].

9.The Board clarified the material aspects of the applicant’s claim with him at the hearing [25]. It observed that the applicant’s evidence was vague [26]. It further noted that, at the hearing, the applicant indicated that he was not interested in politics; that he had no preference with the CP or BJP; that he only attended the party rallies but did not stay for long; that he didn’t have much knowledge about the CP; and that he was unable to speak for the difference between CP and BJP [28]. Meanwhile, the applicant stated before the Board that the fight between him and the BJP supporters was a personal one which was not about politics [29]. The Board also noticed that several matters raised before it was not advanced before the Director [30]-[31]. In these premises, the Board attached no credence to the applicant’s account of events [34].

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 7 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 is not satisfied with the Board’s decision. His life is not safe in 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 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.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 13^th day of December 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