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

HCAL 1011/2019

[2023] HKCFI 1962

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1011 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 11 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not ask for a 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 RHC, 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 12 October 2015 and surrendered to the Immigration Department on 23 October 2015. On 14 June 2016, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed or framed with false charges by members of Bharatiya Janata Party (“BJP”) and Shiromani Akali Dal Party (“SAD”) because he, as a supporter of India Congress Party (“INC”), refused to join them.

5.According to the applicant, he was an active supporter of INC. From 2008 to 2015, he had been attending the rallies and party gatherings, as well as convincing other people to join their party meetings. In around 2010 or 2011, the BJP and SAD were alliances against the INC. One day, some members from the two parties approached the applicant and invited him to join them. The applicant refused. Later, from the end of 2011 and 2012 when the election was held, there were four public conflicts between the members of INC and those of BJP. In 2012, the BJP and SAD won the election. In 2013 or 2014, when the applicant was walking on the street, he was approached by BJP members again, who threatened to ask the police to frame false charges against him if he refused to join the BJP. Out of fear, the applicant eventually fled to Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 26 June 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 absence or low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [11]-[15]; (ii) state protection would be available to him [16]-[17]; and (iii) internal relocation was a viable option [18]-[20].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 12 November 2018, the Board conducted an oral hearing for his appeal, during which the Board also clarified matters with him [30].

9.Having considered the evidence, the Board noted that, despite the alleged threats, the applicant continued to participate in the INC’s events; that nothing actually happened to the applicant except the threats of false charges in 2013 or 2014; that before the applicant departed India nothing eventful happened; that it was clear that the enemies never intended to materialize the threats; and that it was merely the applicant’s own speculation that the police would not assist him [31]-[40]. In any event, internal relocation was also a viable alternative [47]-[52].

10.In light of the aforesaid, the Board concluded that the applicant’s claim was without merits and thus dismissed his appeal.

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

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

12.In his affirmation in support of his application, he said he is not satisfied with the Board’s Decision and he has problem in his country.

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.The Board had assessed his evidence and, for the reasons given, rejected his evidence on the facts of his claim and found that he will not be subjected to any real risk of being harmed or killed by his enemies. The grounds set out in paragraph 12, supra are not valid to challenge the Board’s Decision.

17.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.

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

CONCLUSION

19.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 3^rd day of August 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