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

HCAL 542/2019

[2023] HKCFI 92

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 542 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 29 January 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 attempted to enter Hong Kong on 27 October 2012 but was refused permission to land.  On the same day, he lodged a torture claim which was rejected on 23 April 2013.  On 24 April 2013, he lodged a non-refoulement claim which would be assessed on all applicable grounds other than torture risk .  His claim was made on the basis that, if refouled, he would be harmed or killed by Paramjit Singh (“Paramjit”) who was a member of the Indian National Congress (“INC”).

5.According to the applicant, his family farmland was adjunct to that of Paramjit. Therefore, they shared the same water pipe for irrigation of the land. Paramjit was said to be influential and connected with the politicians.  On 4 June 2012, his father got into a fight with Paramjit’s family.  When the applicant rushed to stop the fight, he was also hit by Paramjit’s son, Kulwinder who also sustained injuries from the applicant’s punch.  Thereafter, the applicant was threatened because he injured Kulwinder.  The applicant’s complaint to the police was of no avail.  Later that night, he saw Paramjit and several men were armed outside his house.  Despite the applicant escaped to his aunt’s home, he was located by Paramjit in two incidents.  Out of fear, he fled to Hong Kong for protection.  Details of his claim are set out at paragraph 10 of the Notice of Decision dated 25 May 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 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”);

b.  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

c.  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. In elaboration, the Director found that (i) the applicant’s claim lacked credibility [16]-[18]; (ii) state protection would be available to him [20]-[25]; and (iii) internal relocation was a viable alternative [26]-[27]. In passing, the Director also noted that the applicant failed to produce any medical reports to support his alleged injuries [28]-[29].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 22 November 2018, the Board conducted an oral hearing for his appeal, during which he was assisted by an interpreter [5].

9.The Board noticed that the applicant’s evidence was inconsistent as to whether Paramjit was present at the scene of the fight [49].  It also cast doubt as to whether the applicant could see from distance that his father involved in the fight with Kulwinder [50].  It noted that the applicant contradicted himself with the injuries inflicted on Kulwinder [51].  Further, the Board observed that the applicant provided additional facts which he omitted in his non-refoulement claim form [52].  Meanwhile, the Board found that the applicant provided conflicting evidence as to the subsequent events following the fight [53].  Insofar as the alleged visits to his aunt’s place, the Board found that the applicant’s evidence was questionable and unpersuasive [54]-[55] and that his evidence on whether his aunt reported the visits to the police station was contradictory [56].

10.In light of the above concerns, the Board rejected the applicant’s claim.  In any event, the Board opined that internal relocation was available to the applicant [59]-[64].  For these reasons, the appeal was dismissed.

Application for leave to apply for judicial review of the Board’s Decision

11.The applicant has filed Form 86 dated 25 February 2019 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of his application, the applicant considered that the Board’s Decision is unfair and unreasonable.

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. The ground in paragraph 12 is only his opinion without any evidence in support.

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 16^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