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

HCAL 945/2019

[2023] HKCFI 422

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 945 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 dismissed.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 7 March 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 8 September 2015 and was permitted to remain until 22 September 2015. He did not depart and had overstayed. On 24 September 2015, he surrendered to the Immigration Department. On 23 November 2015, 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 of his girlfriend.

5.Briefly stated, the applicant was in a romantic relationship with a girl named Manpreet. However, they were from different castes and Manpreet’s father was a police officer. Their relationship was against the cultural tradition and was opposed by both families. Soon, Manpreet’s aunt found out about their relationship and her father threatened the applicant on the phone. In around June 2015, the applicant got into a fight with Manpreet’s brother on his way to see Manpreet. Her brother subsequently posed death threats to the applicant. The couple decided to elope. The applicant went to another village first to find residence for them. Yet, one day, he encountered Manpreet’s brother and was attacked by their men. 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 24 August 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. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [12]; (ii) state protection would be available to him [13]-[17]; and (iii) internal relocation was a viable option [18]-[19].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 24 January 2019, the Board conducted an oral hearing for his appeal.

9.The Board considered the applicant’s oral evidence to be equivocal and vague [50]. It identified several changing and inconsistent aspects. For example, the applicant was vague about his stay in Dehli; and he provided different accounts in relation to the attack from Manpreet’s brother and the subsequent police intervention [51]-[52]. As a result, the Board found that the applicant’s claim lacked credibility [53].

10.In assessing the individual grounds, the Board found that the attackers, if any, did not act in an official capacity; that the alleged injuries failed to attain a minimum level of severity; and that there would be sufficient state protection [56]-[63]. In any event, internal relocation would be available [68]-[72].

11.For these 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 8 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 did not raise any specific ground.

14.By another affirmation dated 12 November 2019, the applicant applied to withdraw his application for the reason that he has obtained his Hong Kong visa (dependent visa) and he would like to travel back to his home country.

DISCUSSION

15.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).

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

17.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.”

18.The applicant has not been able to raise any valid reason to challenge the Board’s Decision.

19.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.

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

CONCLUSION

21.For the reasons above, and coupled with his application to withdraw his application, I dismiss his application.

Dated the 7^th day of March 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