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

HCAL 1084/2019

[2023] HKCFI 48

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1084 of 2019

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 28 February 2019 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 as a visitor on 4 March 2015 and was permitted to stay until 18 March 2015. He did not depart and had overstayed since 19 Mach 2015. On 5 April 2015, he was arrested by the police for overstaying. On the same date, he indicated that he wished to lodged a non-refoulement claim. On 25 October 2017, he was again arrested by the police for possession of weapon in public place. Later, he was charged, convicted and sentenced to imprisonment for six months. On 21 September 2018, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by the family members of the victim in a traffic accident and would be arrested by the Indian police.

5.In short, the applicant accidently killed a child with his truck. The child was from an influential family. Scared, the applicant fled the scene. Initially, the applicant went to hide in another village. However, he heard from his family that the victim’s family members visited his house, vandalized his properties and threatened his wife and children. The applicant then came home. Upon his arrival, the victim’s family came and attacked him. They also killed his father. Out of fear, the applicant fled to Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 26 November 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 his refoulement was assessed to be low. In elaboration, the Director found that (i) the claimed risk of harm was not imminent [14]; (ii) the victim’s family had shown no real intention to harm or even kill him [15]; (iii) there was no evidence that the victim’s family was so influential that they could locate the applicant everywhere [16]; (iv) state protection would be available to him [17]; and (v) internal relocation was a viable alternative [18]-[19].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 12 February 2019, the Board conducted an oral hearing for his appeal.

9.The Board discussed the material aspects of the applicant’s claim with him and sought clarifications, in particular, on the traffic accident [9]. It then considered the country of origin information [20]-[24] and the relevant legal principles [25]-[39]. Guided by the aforesaid principles, the Board made findings on the credibility of the applicant’s claim. It noted that the centerpiece of the applicant’s claim, i.e., the fatal traffic accident, was not supported by evidence other than the applicant’s own words [43]. He was vague about the time of the accident [44]. It also considered that the applicant’s evidence as to his previous experience of driving underage and without license was implausible [45]. Meanwhile, the Board considered that the accident had lapsed for 14 years and it was plausible that the victim’s family would no longer seek revenge against the applicant [46]-[48].

10.In summary, the Board refused to accept that there was a traffic incident; that the applicant was attacked with iron rods; and that he could not establish a future risk of harm even if his father was killed in the fight. Thus, the Board found that the applicant’s claim lacked credibility [50]-[59]. In addition, there was no evidence of alleged power and influence of the victim’s family. Neither was there evidence of state involvement [60]-[62]. Besides, the applicant failed to show that he sustained injuries that attained a minimum level of severity [63].

11.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

12.The applicant has filed Form 86 dated 23 April 2019 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of his application, the applicant said he was not satisfied with the Board’s Decision as it had not carefully considered his case. It only made its decision based upon the internet information.

DISCUSSION

14.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).

15.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

16.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.”

17.The Board had clarified his evidence with him and considered the COI. It did not accept his evidence on the facts of his case. His reasons are only his opinions without any evidence in support. There is no valid reason from the applicant to challenge the Board’s Decision.

18.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.

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

CONCLUSION

20.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 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