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

HCAL 776/2019

[2023] HKCFI 853

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 776 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 21 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”), 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 illegally on 9 October 2014 and was arrested by the police for being an illegal immigrant on 20 October 2014.  On 22 October 2014, 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 due to a land dispute.

5.In short, the applicant’s uncle intended to take over the land passed down by his grandfather.  Initially, his uncle would pay the applicant’s family for occupying the land.  In 2013, the applicant became unemployed.  His father wished to transfer the disputed land to him.  Upon knowing this decision, the applicant’s uncle started to threaten and assault the applicant from February 2014 onwards.  His uncle even wanted to destroy the farmland.  In order to avoid the conflict and further harms from the uncle, the applicant escaped to New Delhi to stay with his maternal aunt.  His friend would constantly update him with the news about the disputed land.  However, the applicant’s uncle attacked his friend one day for the applicant’s whereabouts.  Feared that he would be located by his uncle, the applicant fled to Hong Kong for protection. Details of his claim are set out at paragraph 8 of the Notice of Decision dated 3 November 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 fear of harm 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 [14]-[17]; (ii) state protection would be available to him [18]; and (iii) internal relocation was a viable alternative [19].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 17 December 2018, the Board conducted an oral hearing for his appeal, during which he testified [16]-[26].

9.Having considered the evidence, the Board found that the applicant’s evidence about the conflict between his uncle and father was extremely general and lacked in details [28]; and that he offered no cogent explanation as to why his uncle would target him instead of his father [29].  The Board further found that the applicant sought to exaggerate his claim and that his claim was implausible [33].  In these premises, the Board rejected the core aspects of the applicant’s claim for lack of credibility [36].  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

10.The applicant has filed Form 86 dated 20 March 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 was not satisfied with the Board’s Decision because all the political relation and police point were not taken seriously.

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.The reasons stated in paragraph 11, supra do not assist his application. They are general comments without substance. 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.

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 30^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