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

HCAL 844/2019

[2023] HKCFI 1298

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 844 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 8 January 2019, which is an error as the date should be 7 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”), the only Decision made by the Board on the file.

2.The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, 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 last entered Hong Kong on 1 August 2015 and surrendered himself to the Immigration Department on 5 August 2015.  On 26 January 2016, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by Joginder Singh (“Joginder”) and Mohinder Singh due to land and political disputes.

5.According to the applicant, he and his family were supporters of Congress Party or the Indian National Congress Party (“INCP”), a political group which was the rivalry of Bharatiya Janta Party (“BJP”).  In the election years of 2000 and 2005 respectively, the applicant encountered three attacks from the BJP members, including Joginder and Mohinder.  In July 2006, he left for Dubai and returned to India in October 2008.  He stayed with his wife’s family in Punjab.  In March 2009, he encountered Mohinder and Joginder again who harassed him.  Later, in July 2010, the applicant moved to Mumbai before he came to Hong Kong for the first time in October 2010.  He was later deported back to India.  In September 2013, Joginder and Mohinder attacked the applicant again for refusing to sell them the disputed land at a cheaper price.  Thereafter, the applicant stayed in his wife’s home for a few months, without encountering his enemies, before eventually coming to Hong Kong for protection.  Details of his claim are set out at paragraph 9 of the Notice of Decision dated 13 April 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 as it was unlikely that his claimed risk of harm would be materialized.  In elaboration, the Director found that (i) the claimed injuries failed to attain a minimum level of severity [14]-[28]; (ii) there was no evidence that the applicant was the target of BJP [29]-[38]; (iii) there was no evidence that his alleged enemies still held adverse interest against him after a long lapse of time [39]-[54]; (iv) the threats, if any, were localized [55]-[59]; (v) there was no state involvement [60]-[63]; (vi) state protection would be available to him [64]-[75]; and (vii) internal relocation was a viable option [76]-[88].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 8 January 2019, the Board conducted an oral hearing for his appeal, during which he answered the Board’s inquiries [26].

9.Having considered the evidence, the Board concluded that the applicant was not a truthful witness.  In particular, the applicant and his family were mere supporters who did not have any active participations in the INCP and it was implausible that they were the targets of the BJP.  Meanwhile, the claimed enemies were mere supporters of BJP and not even members thereof.  Further, the alleged land dispute was a private one.  As to the claimed injuries, the applicant only sustained bruises.  In addition, he was able to live trouble-free with his in-laws before he fled.  The Board also noticed that the applicant only left his home country after the fourth attack [26].

10.The Board further considered the country of origin information and found that state protection would be available to the applicant [30]-[32].  In any event, internal relocation was proven to be a viable alternative [44]-[48].

11.In these premises, the Board concluded that the applicant’s claim was unsubstantiated 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 27 March 2019 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of his application, the applicant simply said he wanted to reject the Board’s Decision without setting out any specific ground.

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 Decision 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 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.

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 23^rd day of May 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