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

HCAL 2399/2020

[2023] HKCFI 2285

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2399 of 2020

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.

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 13 November 2020 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 February 2016 and was arrested by the police the next day.  On 18 February 2016, he lodged a non-refoulement claim on the basis of a risk of harm from his uncles, Amrirk Singh and Kulwand Singh, due to a land dispute.

5.In brevity, the applicant claimed that, in around 1998, after his father passed away, their family land was inherited by his elder brother.  Since then, the applicant and his elder brother had been farming on the land.  However, his uncles wanted to occupy their land.  The brothers refused.  In 2010, while the applicant was working alone on the land, he was attacked by his uncles with sharp-edged weapons.  He sustained open cuts on his head and left leg.  Out of fear, the applicant’s elder brother left for Dubai and he came to Hong Kong for protection.  Details of his claim are set out at paragraph 6 of the Notice of Decision dated 12 December 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 [11]-[13]; (ii) state protection would be available to him [14]-[15]; and (iii) internal relocation was a viable option [16]-[19].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 2 November 2020, the Board conducted an oral hearing for his appeal, during which he testified with the assistance of an interpreter of the Punjabi and English languages [11].

9.The Board recapped the applicant’s claim and his personal background [12]-[28], as well as summarized his oral testimonies [37]-[59].  Having considered the evidence, the Board concluded that the applicant was not a witness of truth and thus his claim was not credible [65].

10.In particular, the Board noted that the applicant was inconsistent as to the owner of the land, whether it was his elder brother or his mother.  Even if the Board accepted that the land belonged to his elder brother, it was illogical that the uncles would wait for 12 years, until 2010, to demand the subject land.  Meanwhile, considering the evidence about the attack, the Board found that the applicant did not sustain serious injuries [68].  In addition, the applicant suffered no further harm from his uncles and, in any event, the applicant was never the owner of the subject land [69].

11.Furthermore, the applicant had stayed in India for another six years before coming to Hong Kong.  He was not pursued or harmed by his uncles, which the Board found that there was no adverse interest towards him from his uncles [70]-[71].  In any event, after considering the country of origin information, the Board concluded that state protection and internal relocation were both viable options for the applicant [75]-[84].

12.For the above 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

13.The applicant has filed Form 86 dated 7 December 2020 for leave to apply for judicial review of the Board’s Decision.

14.In his affirmation in support of his application, he said if he does not agree with the Board’s Decision and he cannot go back to his home country because his life is still in danger.

DISCUSSION

15.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).

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

17.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.”

18.The Board had assessed his evidence and, for the reasons given above, refused to accept his evidence.  There is no valid grounds from the applicant to challenge the Board’s Decision.

19.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.

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

CONCLUSION

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

Dated the 11^th day of September 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