Joshi Mulame Karam Singh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2/2019

[2023] HKCFI 131

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2 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 19 December 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 last entered Hong Kong illegally on 4 February 2016 and surrendered to the Immigration Department on 5 February 2016.  On 17 June 2016, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by Raman Singala who was connected with the Shiromani Akali Dal Party (“SAD”).

5.According to the applicant, on 4 June 2015, he was involved in a car accident, in which a private car fell down a canal in an attempt to avoid his motorcycle.  The passengers in the car, namely, Gaurav Singala and his parents, were injured.  They were the family members of Raman who was also a notorious gangster.  When the applicant sent them to the hospital, the relatives noted down his contact information.  A week later, the applicant received a phone call from Raman notifying him the death of Gaurav and threatening for a revenge.  The applicant’s report to the police was of no avail due to Raman’s connection with the SAD.  In June 2015, the applicant was chased by Raman on several occasions.  He was lucky to escape.  However, on 29 July 2015, the applicant was intercepted and attacked by Raman and his followers.  After the attack, the applicant hid in another village.  In January 2016, the applicant received another phone call from Raman who told him that he was located.  Out of fear, the applicant fled to Hong Kong for protection.  In addition, the applicant also stated that Raman and the SAD held a grudge against him because he quitted the SAD in around 2013.  Details of his claim are set out at paragraph 6 of the Notice of Decision dated 26 February 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 refoulement was assessed to be low.  In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated no real or foreseeable risk of harm [15]; (ii) the dispute with Raman was a private one without state involvement [16]; (iii) state protection would be available to him [17]-[20]; and (iv) internal relocation was a viable alternative [21]-[22].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  Pursuant to the applicant’s request, on 26 October 2018, his legal representative confirmed to the Board that his appeal could be disposed on paper without an oral hearing [13].  Both parties had submitted the skeleton submissions [14].

9.Having considered all the evidence, the Board made the following findings.  The Board assessed the crux of the applicant’s claim, i.e., the alleged traffic accident.  It found that the details of the accident were lacking, such as the extent of injuries sustained by the passengers, the cause of death, and when and how the applicant was chased by Raman.  Despite the applicant stated in the grounds of appeal that the screening interview before the Director was rush and with time constraint, the Board found that he failed to seize the opportunity of an oral hearing before the Board to clarify these matters [60].

10.Further, the Board found that the applicant’s evidence as to what happened after the traffic accident was inconsistent.  In particular, the applicant contradicted himself as to where he was attacked [61].  Meanwhile, the Board attached little weight to the applicant’s medical records as the injuries recorded therein were different from what the applicant described [62].  As to the newspaper article submitted by the applicant’s legal representative in support of the alleged traffic incident, the Board found that it was implausible that the newspaper would publish the accident on the same date especially when the accident happened in the evening [63].  It was equally illogical that Raman would inform the applicant that he had already located the applicant so as to give the applicant a chance to flee [64].  In addition, the Board rejected the applicant’s claim that Raman and the SAD targeted him because of his abandonment of the SAD membership as there was no evidence to support such assertion [66].

11.For the aforesaid 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 2 January 2018 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 is not satisfied with the Board’s Decision.

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 applicant’s legal representative had confirmed that the applicant would not want a hearing for his application. 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.

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 26^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