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

HCAL 808/2019

[2023] HKCFI 985

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 808 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 20 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant requested an oral hearing. But he was absent on the date of hearing. His application is therefore dealt with 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 3 September 2015 and was arrested by the police on 6 September 2015. On 9 September 2015, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by Rekha Nain’s family, especially her brother, due to his romantic relationship with Rekha.

5.Briefly stated, the applicant’s claimed fear of harm originated from the disapproval of marriage between him and Rekha from Rekha’s family. He and Rekha started dating in 2013. Thereafter, Rekha was pregnant and they decided to get married. However, Rekha’s family disapproved as the applicant was poor. In their meeting in mid-2014, Rekha’s family, especially her brother Ramesh, threatened to kill the applicant. The applicant later escaped to his cousin’s house. Yet, Rekha’s family reported a false case to the police that he raped Rekha, leading to the police visit in his cousin’s house. As the applicant did not intend to cause trouble to his cousin, he eventually fled to Hong Kong for protection. In his encounters with Rekha’s family, he was only verbally threatened without being physically harmed. Details of his claim are set out at paragraph 7 of the Notice of Decision dated 20 March 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. 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]-[14]; (ii) state protection would be available to him [15]-[18]; and (iii) internal relocation was a viable option [19]-[21].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 21 December 2018, the Board conducted an oral hearing for his appeal, during which he provided further information [17].

9.Having considered the evidence, the Board identified that there were several discrepancies in the applicant’s claim. In particular, the applicant was never assaulted by Ramesh. Instead, he only met Ramesh once and yet still claimed that the risk of harm was from Ramesh. He was inconsistent and his evidence illogical in relation to his relationship with Rekha. The Board also rejected his claim that the Indian police could locate him just by using his telephone record with Rekha and refused to accept that Ramesh could locate him elsewhere in India. There was no evidence about the alleged complaint of rape lodged against him. In addition, he was able to stay in his cousin’s place for ten months without encountering any problem from Rekha’s family or the police [18]. As a result, the Board found his evidence lacked credibility.

10.In assessing the individual grounds, the Board found that the applicant was never harmed and, based on the country of origin information, the government was improving its investigation into police misconducts [16]. In any event, state protection and internal relocation were both available options for the applicant [49]-[52]. In these premises, the Board rejected the applicant’s claim and dismissed his appeal.

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

11.The applicant has filed Form 86 dated 25 March 2019 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of his application, the applicant set out the following grounds:

(1)  he was not legally represented for his appeal before the Board;

(2)  he did not have interpretation service in the preparation of his appeal and also in the Board’s Decision;

(3)  the Director did not advise him of his right, therefore he did not make complaint before the Board;

(4)  the Board had not properly considered his situation in India as his life is not safe there and state protection is not available to him due to police corruption and the police are highly under-resourced;

(5)  the Board was wrong in its decision as the case management was unfair;

(6)  the Duty Lawyer Service did not assist him in his appeal whereas some other claimants did have such service and it is unfair to have different treatment; and

(7)  the Director had relied upon reform of the police to combat corruption as the reason of provision of state protection without appreciating that reform will take time and such exercise is only diplomatic cosmetics for the international community.

DISCUSSION

13.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).

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

15.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.”

16.As to the grounds set out in paragraph 12, supra, grounds (1) and (2) are not valid.

17.The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178 held:

“22. This Court has repeatedly held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration. We do not find anything amiss arising from lack of legal representation in the process before the Board.”

18.Also, in Re Khan MD Omar [2019] HKCA 803, 19 July 2019 held:

“I8. … …Interpreter services were provided at hearings at every stage. Such services were also available at the time when the applicant was assisted by Duty Lawyer. We do not accept that the alleged lack of language assistance at other time would render the process unfair in the present case.”

19.Ground (3) is a non-point as the Director has no duty to advise him of his right to complain. He was at liberty to make his complaint or submissions before the Board. There is no evidence that he was not allowed to do so.

20.The other grounds are his personal views of comments without any evidence in support of them. The Court of Appeal in Salim Ahmed alias MD Salim [2020] HKCA 244 held:

“20. … … general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case: Re Mizan Sikder [2019] HKCA 20 and Ibrahim v Simon Russell [2019] HKCA 1327.” See also Re Haider Khalil [2021] HKCA 223 [16].”

21.The Board had considered the applicant’s evidence and, for the reasons it had given, rejected his evidence. The applicant has not been able to raise any valid reason to challenge the Board’s Decision.

22.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.

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

CONCLUSION

24.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 18^th day of April 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