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

HCAL 1199/2019

[2023] HKCFI 2617

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1199 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 24 April 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 on 19 June 2014.  Yet, he failed to depart within the time limit and had overstayed since 4 July 2014.  On 13 July 2014, he was arrested by the Hong Kong police.  On 16 July 2014, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by his uncle or cousin due to a land dispute.

5.In brevity, the applicant claimed that the subject land in dispute was passed on from his grandfather to his father in 1995.  Both his father and his uncle inherited 50% of the subject land.  The applicant’s father had been farming the land whilst his uncle sold his portion in 2008.  In 2010, the applicant’s father made a will which entitled the applicant to inherit the land after his father passed away.  In the same year, the applicant’s aunt started to harass the applicant’s family and demand the transfer of the subject land. The applicant’s family refused and she cut off the water and electronic supplies to the land.  In early 2014, the applicant’s cousin, who was well connected with the political parties, along with 14 men came to the applicant’s land.  They destroyed the land and attacked the applicant with wooden sticks. Out of fear, the applicant escaped to old Delhi before fleeing to Hong Kong for protection.  Details of his claim are set out at paragraph 6 of the Notice of Decision dated 11 July 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]-[14]; (ii) state protection would be available to him [15]-[16]; and (iii) internal relocation was a viable option [17].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 18 January 2019, the Board conducted an oral hearing for his appeal, during which he clarified certain important points put forward by the Board [7].

9.The Board considered the applicant’s claim and his oral testimony [11]-[49].  Having considered the evidence, the Board found that the applicant provided confusing evidence as to the real culprit of his claim, whether it was his uncle, aunt or cousin [50]-[51]; that there was no evidence of persecution [52]; that, even if there was evidence of persecution, it was simply for personal gain [53]; and that the Board refused to accept that his cousin was capable of inflicting serious harm or even killing the applicant [54].  As a result, the Board concluded that the applicant would not face any real or substantial risk of harm upon refoulement.

10.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

11.The applicant has filed Form 86 dated 6 May 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, for the reasons given above, the Board found that the applicant failed to establish that he will be harmed or killed if he returns to India. There is no valid ground from the applicant to challenge the Board’s Decision.

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

CONCLUSION

18.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 31^st day of October 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