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

HCAL 816/2019

[2023] HKCFI 1338

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 816 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 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 last entered Hong Kong on 17 March 2016 as a visitor and was permitted to stay until 31 March 2016.  He did not depart and had overstayed since 1 April 2016.  On 5 April 2016, he surrendered himself to the Immigration Department.  On 19 September 2016, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by his neighbour, Mr. Harbhajan Singh, due to a monetary dispute.

5.According to the applicant, his father owned a store selling electronic spare parts.  Since around 2013, their neighbour Harbhajan had been harassing them for unknown reasons.  He also defaulted the payments for the electronic parts he brought from the applicant’s father.  In June 2015, Harbhajan’s relative visited the applicant’s store and obtained the wires without making payments.  Thereafter, the applicant went to Harbhajan’s house, asking for settlement of the sums.  However, he was assaulted by Harbhajan.  Despite the applicant’s report to the police, Harbhajan still refused to pay.  In July and August 2015, the police threatened, and on one occasion, tortured the applicant for chasing Harbhajan for the money.  His relocation to other village was of no avail as Harbhajan could still locate him.  Out of fear, the applicant eventually fled to Hong Kong for protection.  Details of his claim are set out at paragraph 7 of the Notice of Decision dated 22 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 as the risk of harm upon refoulement was considered to be not real nor substantial.  In elaboration, the Director found that (i) the centerpiece of the applicant’s claim was implausible [15]; (ii) the low intensity and frequency of past ill-treatments indicated no real or foreseeable risk of harm [16]; (iii) state protection would be available to him [17]; and (iv) internal relocation was a viable alternative [18].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 11 December 2018, the Board conducted an oral hearing for his appeal, during which he testified [33].

9.Having considered the evidence, the Board made the following findings. It accepted the applicant’s evidence as credible, namely, his long-standing grudges with Harbhajan and Harbhajan’s refusal to settle the money owed to the applicant’s family [58].  It also accepted that the local police sided with Harbhajan and tortured the applicant [59].  Nevertheless, the Board concluded that an agreement with Harbhajan was reached [59].

10.In these premises, the Board found that, if the applicant could forego the pursuit of the money, he would not face any real risk of harm from Harbhajan.  Meanwhile, it was essentially a monetary dispute that could be solved in Indian courts.  In addition, the violence from Harbhajan and his son did not go further than altercations and foul languages [60]-[62].  It also found that, if the police still sided with Harbhajan, the applicant could seek remedies by complaining to the authorities [63].  State protection and internal relocation were both available to the applicant [64]; [81]-[86].

11.For the aforesaid 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 25 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 reiterated his story of coming to Hong Kong without raising 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 set out its findings of the facts in the Board’s Decision, as summarized in paragraphs 9 and 10, supra. 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 30^th 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