Case Document

100%Judiciary

HCAL 2577/2018

[2023] HKCFI 45

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2577 of 2018

BETWEEN
	Tajinder 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 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 8 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 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 1 August 2015 as a visitor and was permitted to remain until 7 August 2015. He did not depart and had overstayed since 8 August 2015. On 13 August 2015, he surrendered to the Immigration Department. On 16 February 2016, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by his wife’s family because of their secret marriage.

5.According to the applicant, in around 2008, he fell in love with his wife Paramjeet Kour. Paramjeet’s family were rich and influential. Her father and brother were connected with politicians. However, the applicant was from a lower caste and their marriage would be prohibited. In mid-2014, Paramjeet’s family found out about their relationship. They threatened and assaulted the applicant. Yet, the couple continued their secret relationship. Two months later, Paramjeet’s father and brother again visited the applicant’s house, threatening to kill him if he did not stop seeing Paramjeet. Thereafter, after Paramjeet’s insistence, her parents seemed to accept their relationship and arranged the applicant to come to Hong Kong so that the couple could start a new business. However, when the applicant was stopped at the immigration point in Hong Kong, he realized all the documents prepared by Paramjeet’s father were fake. After he returned to India, he got married with Paramjeet on 27 July 2015. Later, they both fled to Hong Kong. His father in law started to threaten the applicant via phone calls. In November 2015, his wife was tricked into returning to India and had since then been harassed by her own family. Unable to cope with the pressure, his wife decided to divorce him in the end of 2016. Since the applicant feared of the honor killing if he returned, he stayed in Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 19 June 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 upon refoulement was assessed to be low. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [13]; (ii) state protection would be available to him [14]-[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 2 October 2018, the Board conducted an oral hearing for his appeal. The applicant elected not to give evidence at the hearing. Despite the Board expressed the concerns over the questionable evidence, the applicant still chose not to testify [67]-[71].

9.The Board considered the country of origin information (“COI”) on the applicant’s alleged police inaction in assisting couples of inter-caste marriages [34]-[49]. It concluded that there were ample instances which the couples could seek protections from the police or local authorities [50]-[51]. Meanwhile, the Board found that internal relocation to Delhi would not be unduly harsh for the applicant [52]-[53]. Insofar as the applicant’s evidence was concerned, the Board first considered the evidence in support of his alleged marriage with Paramjeet. It found that the two marriage documents submitted in support were questionable [74]. It therefore refused to attach any weight to the said documents [75]. Further, the Board considered his evidence on the alleged first failed attempt to enter Hong Kong to be questionable and devoid of logics [76]. In addition, the dispute was private in nature without state involvement and the alleged injuries sustained by the applicant failed to attain a minimum level of severity [78]-[79].

10.In these premises, with the finding that the applicant’s claim lacked credibility, 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 16 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 complained that the Board disregarded the danger and threat he may face in his country if refouled.

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.I have noted that the applicant had refused to provide further information to the Board upon request despite the Board’s warnings. He cannot complain that the Board did not accept his evidence.

17.The Court of Appeal in TK v Michael C Jenkins Esq and Director of Immigration CACV 286/2011, 21 November 2012 [2013] 1 HKC, 526, CA, Hon. Cheung CJHC, Stock VP and Fok JA held:

“25. High standards of fairness certainly do not entitle the torture claimant, having stated a claim, ‘to simply sit back and require the Director to disprove it’. The exercise of determining whether a claim made under article 3(1) of the CAT is valid must be one of “joint endeavour”. CH v Director of Immigration [2011] 3 HKLRD 101, para 47.”

18.The applicant is obligated under the Ordinance to cooperate with the Director and the Board for the assessment of his claim: section 37ZA (1)(a). As the law imposes an obligation on him to make prompt and full disclosure of all material facts in support of the claim, his refusal to do so is in contravention of the statutory provision and he must bear the consequences. In my view, high standards of fairness give no exemption to the applicant for the compliance of the Ordinance.

19.Where the applicant refused to give evidence to verify his evidence, his evidence, being not subjected to verification, is no better than the hearsay evidence, which the Board was entitled to give very little or even no weight to it.

20.The Board had assessed his case and did not accept his evidence on the facts of his case. There is no valid reason to challenge the Board’s Decision. The reasons in paragraph 12, supra, are only his opinions or comments, which do not assist his application.

21.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.

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

CONCLUSION

23.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 10^th day of January 2023

(C.S. FUNG (Ms))
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 10 January 2023 Tajinder 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 10 January 2023 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 12309/18/7/59/IN2463 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1906/18 (formerly RBCZ 10867/16) (PSO) (T6I121) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)