Raj Kumar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 41/2019

[2023] HKCFI 251

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 41 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 31 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 entered Hong Kong as a visitor on 24 August 2014 and was permitted to stay until 7 September 2014. He did not depart and had overstayed since 8 September 2014.  On 9 October 2014, he surrendered to the Immigration Department.  On 24 November 2014, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by members of Lashkar-e-Taiba (“LeT”) which was a terrorist group.

5.According to the applicant, he used to study with Bittu and Sheru who were members of the LeT.  One day, when the applicant was working on his family farmland with his brother, they saw a plastic bag.  It turned out that the bag belonged to Bittu and Sheru and contained their weapons.  Later, the police seized the bag of weapons and arrested Bittu and Sheru.  The applicant was requested to be the witness of the weapon case but he refused.  Yet, Bittu and Sheru were released.  A week later, the applicant was assaulted by Bittu and Sheru for the whereabouts of their weapons.  They also threatened to kill the applicant.  The applicant then escaped to Gujrat.  In around July 2014, he heard that Bittu and Sheru were still looking for him and they injured his elder brother and cousin.  Out of fear, the applicant eventually fled to Hong Kong for protection.  Details of his claim are set out at paragraph 7 of the Notice of Decision dated 19 January 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 was assessed to be low.  In elaboration, the Director found that (i) a large parts of the applicant’s claim were based on hearsay information [15]; (ii) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [16]-[19]; (iii) there was no evidence that Bittu and Sheru belonged to LeT or that the LeT, as a group, would target the applicant personally [20]-[22]; (iv) state protection would be available to him [23]-[30]; and (v) internal relocation was a viable alternative [31]-[35].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 7 November 2018, the Board conducted an oral hearing for his appeal, during which he testified with the assistance of an interpreter [15].

9.Having considered the evidence, the Board accepted the applicant’s accounts on the past events on the basis of his consistent and detailed evidence [32]-[37].  However, in assessing the individual grounds, the Board noted that the applicant’s fear of harm was from private individuals [44]. While some police officers might be corrupted, the Board found that, on the available information, it would be difficult to draw a conclusion that the police would not offer assistance or protection to the applicant [45];[67]-[68].  As a result, the Board rejected the applicant’s claim on the ground of Torture risk.  In any event, internal relocation would be available to him [56]-[60].  Therefore, the Board rejected the applicant’s claim on the remaining grounds and dismissed his appeal.

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

10.The applicant has filed Form 86 dated 7 January 2019 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, the applicant said he is not satisfied with the Board’s Decision.

DISCUSSION

12.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).

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

14.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.”

15.There is no valid reason to challenge the Board’s Decision.

16.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.

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

CONCLUSION

18.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 February 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