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

HCAL 72/2019

[2023] HKCFI 373

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 72 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 2 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”), I shall deal with his application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant is a national of India.  He entered Hong Kong as a visitor on 22 May 2015 and was permitted to remain until 5 June 2015.  He did not depart and had overstayed since 6 June 2015.  On 12 June 2015, he surrendered to the Immigration Department.  On 15 October 2015, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by his paternal uncle Rawel Singh.

5.According to the applicant, his claimed fear of harm from Rawel arose from a land dispute.  The applicant’s grandfather distributed the land between the applicant’s father and Rawel.  Rawel was not satisfied with the distribution.  In 2012, his grandfather passed away and the situation among them worsened in late 2014 when the applicant attempted to build a house on the disputed land.  That day, Rawel brought some men and attacked the applicant with steel rods and threw stones and bricks at him.  The applicant was seriously injured but police did not take any actions despite they came to the scene.  Thereafter, during the applicant’s recovery process, Rawel constantly visited him, threatening and harassing him.  Out of fear, the applicant fled to Hong Kong for protection.  While he was in Hong Kong, his father informed him of the failed attempt to negotiate and of Rawel’s death threats.  Details of his claim are set out at paragraph 6 of the Notice of Decision dated 13 December 2017 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 risk of harm was groundless.  In elaboration, the Director found that (i) the facts did not support an indication that Rawel would actually harm or even kill the applicant if he returned to India [12]-[13]; (ii) state protection would be available to him [14]-[19]; and (iii) internal relocation was a viable alternative [20]-[25].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  The Board conducted an oral hearing for his appeal.

9.Before the Board, the applicant confirmed that his parents are still residing in their home in India [37].  He had no knowledge whether his family members encountered any problems since he came to Hong Kong [38].  Yet, the applicant also stated that he had no further information to provide.  Despite the Board expressed its concerns over certain aspects of his claim, the applicant indicated that he had nothing more to say other than those in the written statements [43].

10.The Board highlighted the aforesaid concerns.  For example, the disputed land was not under the applicant’s name.  If Rawel was minded to do anything to take over the land, he could have harmed or killed the applicant’s father, the owner of the disputed land.  Yet, there was no evidence of such act from Rawel [48].  Even if the Board accepted the applicant’s claim at its face value, it noted that he was only assaulted once and he had stayed home for another six months without any problems before he left [49].  It further noted that the claimed political group to which Rawel belonged was not in power when the applicant’s alleged incident happened.  The group was elected to be the ruling party in early 2017 when the applicant lodged the non-refoulement claim.  As result, the Board rejected his assertion that he would be at risk of harm for different political opinions [50].

11.For the above reasons, the Board did not accept 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 9 January 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 is not satisfied with the Board’Decision. He has problem in his country and he cannot go back. He asked the Court to help him stay in Hong Kong.

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 Decisions 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 reasons in paragraph 13 are not valid 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 28^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