Sunil Kumar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 972/2019

[2023] HKCFI 2152

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 972 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 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“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, 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 entered Hong Kong illegally on 3 September 2015 and was arrested by the police for illegal remaining on 6 September 2015.  On 10 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 Ajay Kumar and his underlings.

5.In brevity, the applicant had land disputes with Ajay over the family lands after his father and uncle passed away.  Ajay attempted to claim and occupy the applicant’s lands.  In two incidents on 22 October 2002 and early 2015 respectively, Ajay and his underlings assaulted the applicant and threatened to kill him if he refused to surrender his portions of the land. Thereafter, the applicant had filed two civil litigation proceedings against Ajay for the two pieces of land.  Ajay had been threatening to kill him if he refused to withdraw the cases.  Feared that the threats would materialize, the applicant fled to Hong Kong for protection.  Details of his claim are set out at paragraph 7 of the Notice of Decision dated 18 May 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 applicant’s credibility was in doubt [17]-[21]; (ii) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [23]; (iii) state protection would be available to him [24]-[34]; and (iv) internal relocation was a viable option [35]-[41].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 22 January 2019, the Board conducted an oral hearing for his appeal, during which he testified with the assistance of an interpreter [45].

9.Having considered the evidence, the Board rejected the applicant’s claim [48].  In particular, the Board found that the applicant’s evidence was unreliable [49].  It noted that the only issue remaining in the dispute with Arjay was the civil litigation in 2015 [53].  Yet, it found that the applicant gave inconsistent evidence as to the ownership of the subject land in the 2015 litigation [55]-[59]; and that he had no standing in pursuing the legal proceedings against Arjay [60].  It further refused to accept that the applicant had ever been in fear of Arjay and his men due to the infrequency of the threats [62].  Meanwhile, the alleged influence of Arjay was a pure fabrication [63] and the alleged injuries sustained in the assaults, if existed, were not serious [65]-[66].

10.In any event, state protection and internal relocation were both viable alternatives for the applicant [67]-[81].  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

11.The applicant has filed Form 86 dated 10 April 2019 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of his application, the applicant said he rejects the Board’s Decision as it disagreed ‘the danger and threat place 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 considered the applicant’s evidence and, for the reasons given above, had rejected his evidence. There is no valid ground from the applicant 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 for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 24^th 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