Sohan Lal v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 718/2019

[2023] HKCFI 669

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 718 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 13 February 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 illegally on 2 July 2015. On 5 July 2015, he was arrested by the police for remaining in Hong Kong without authority. On 30 July 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 uncle Prerm and cousin Vicky because of a land dispute.

5.According to the applicant, his father inherited some pieces of land from his grandfather. As the applicant was busy with study, his father rented some parts of the land to Prerm and, in return, Prerm was required to pay money to his father. After the applicant finished his study, his father asked him to work on the family farmland. In December 2014, his father asked Prerm to returned the disputed land by April 2015. Since then, Prerm had ceased paying the rent to the applicant’s father. His father demanded immediate return of the disputed land but Prerm refused.

6.One evening in January 2015, while the applicant was farming on the remaining part of their family land, Prerm and Vicky came to threaten him. The applicant and his father reported the threat to the police station. The police had asked Prerm and Vicky to stay out of the applicant’s farmland. Later, in February 2015, the applicant was assaulted by Vicky and sustained an injury on his head. He also reported the assault to the police who indicated that they would investigate the matter. In March 2015, the applicant was again attacked by Prerm and Vicky and they even tried to burn him. As Prerm and Vicky were influential and connected with the politicians and police, the applicant had fled to other places in India before eventually come to Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 17 April 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

7.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”).

8.By way of the Director’s Decision, the Director dismissed the applicant’s claim as his claimed fear of harm from his uncle and cousin was groundless. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [16]-[19]; (ii) his perceived harm or ill-treatments was not as imminent and substantial as claimed and they did not show any real intention to harm or kill him [20]-[21]; (iii) state protection would be available to him [22]-[28]; and (iv) internal relocation was a viable alternative [29]-[30].

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. On 21 November 2018, the Board conducted an oral hearing for his appeal, during which he was assisted by an interpreter [33].

10.The Board considered all the evidence. It noticed that there were inconsistencies between the applicant’s oral evidence and those in the written statements. For example, the Board found that his evidence on the return of his cousin, who accompanied him to Hong Kong, was problematic – it was illogical that, if his uncle and cousin intended to kill him, they could have tricked him into returning to India instead of telling his cousin that they had the intention to kill the applicant [76]-[78]. It also cast doubt on why his uncle would not target his father who still owned the land [81]. The Board further observed that there were significant inconstancies in the applicant’s claim which might undermine his credibility, such as the police’s actions and the details of the assaults [110]-[113].

11.Having assessed the evidence, the Board concluded that the applicant was not a witness of truth. It noted that, while the applicant told the Board that his uncle did not pursue his father because his father had drinking problem, in his claim, he had been picturing his father as someone who was actively involved in the land dispute [120]-[121]. The Board also considered that the reason of portraying his father as an alcoholic or someone who was not interested in getting the land back was to make up a logical flaw that his father was the owner of the land who would be the one who was targeted by the uncle and cousin [122]-[123]. Even if his father had drinking problem, it would even be easier for his uncle to get the disputed land [124]. Meanwhile, if the applicant was the only one who actively fought for the land, it was only logical for the uncle and cousin to want the applicant to leave so that they could occupy the land without troubles [125].

12.Further, the Board also identified other inconsistencies in the applicant’s claim, such as his hiding places, his evidence on the assaults, and the police involvement [126]-[133]. In addition, the Board found the applicant’s evidence on the attempted burning on his leg unpersuasive [134] and his scar was attached little weight [135]. The applicant was also found to be inconsistent on when his uncle ceased to pay rent and vague about his uncle’s illegal activities [136]-[137].

13.In light of the aforesaid observations, the Board found that the applicant’s claim lacked credibility. In any event, the Board found that internal relocation to Mumbai or New Delhi was a viable option for him [147]-[152].

14.As a result, the Board rejected the applicant’s claim and dismissed his appeal.

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

15.The applicant has filed Form 86 dated 14 March 2019 for leave to apply for judicial review of the Board’s Decision.

16.In his affirmation in support of his application, the applicant did not raise any specific ground.

DISCUSSION

17.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).

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

19.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.”

20.For the reasons given, the Board had rejected the applicant’s evidence on the facts of his claim. There is no valid reason to challenge the Board’s Decision.

21.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.

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

CONCLUSION

23.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 21^st 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