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

HCAL 2567/2018

[2023] HKCFI 29

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2567 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 26 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 illegally on 13 March 2015 and was arrested by the police for illegally remaining on the same date.  On 15 March 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 enemies from the Shiromani Akali Dal Party (“SAD”) because of his refusal to quit the Indian National Congress (“INC”) to join them.

5.According to the applicant, he had been a junior member and active supporter of INC since 2011.  The ruling party at the material time was the SAD.  His enemies were all senior members of the SAD.  In around 2012, they approached the applicant and asked him to join the SAD.  Meeting with the applicant’s refusal, they constantly posed threats to the applicant.  One day in 2013, the applicant was hit by a car which bore a sticker of SAD logo.  He believed that the accident was orchestrated by his enemies but his report to the police was of no avail.  Four months later, the applicant was hit from behind at his head by someone who he believed to be one of his enemies.  Out of fear, he fled to other villages.  However, his enemies kept asking for his whereabouts.  Feared that his whereabouts would be revealed, the applicant decided to flee overseas.  His first attempt in late 2014 failed and he returned to India and stayed with his relatives.  Since he kept a low profile, he didn’t encounter any of his enemies.  Thereafter, he sneaked into Hong Kong and sought protection.  Details of his claim are set out at paragraph 6 of the Notice of Decision dated 7 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 his claimed fear of harm 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 [11]-[12]; (ii) state protection would be available to him [13]; and (iii) internal relocation was a viable alternative [14].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 19 October 2018, the Board conducted an oral hearing for his appeal, during which he testified [4].

9.The Board found that the evidence did not support an assertion that the incidents of assault involved the applicant’s alleged enemies or that they were acting in an official capacity.  On the existing evidence, the Board found that there was no state involvement [7]-[9].  The Board also found that the claimed injuries failed to attain the minimum level of severity [10]-[13].  Further, the country of origin information supported the finding on the availability of internal relocation [14]-[18].  For these reasons, the Board concluded that the applicant’s claim under Torture risk failed [19].  For the same findings, the Board also rejected his claim under the remaining grounds.

10.Independently assessed, the applicant’s immigration record was found to undermine the credibility and reliability of his claim [31]-[34].  Therefore, 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 14 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 was not satisfied with the Board’s Decision.

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.The Board had assessed his case and did not accept his evidence on the facts of his case. 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 6^th day of January 2023.

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