Dilbag Singh v. Torture Claims Appeal Board

Case No.HCAL 613/2017[2018] HKCFI 845

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

HCAL 613/2017

[2018] HKCFI 845

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No.613 of 2017

BETWEEN

	DILBAG SINGH	Applicant
	and
	TORTURE CLAIMS APPEAL BOARD	Putative Respondent

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only; or
	consideration of the documents and oral submissions ex‑parte by the applicant in open court;

Order by the Honourable Madam Justice Toh:

Leave to apply for Judicial Review refused.

Observations for the

Background

1.The applicant is an Indian male who entered Hong Kong initially in March 2014 and was arrested on 5 April 2014 for overstaying. He made a request to the Immigration Department for voluntary repatriation, he was then repatriated on 26 April 2014 to India. On 17 January 2015, the applicant again arrived in Hong Kong and surrendered to the Hong Kong Immigration Department and made a non‑refoulement claim on the same day. The claim was rejected by the Director of Immigration (“the Director”) on 23 March 2015. On 9 April 2015, he lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 18 August 2017. As a result of which he filed a notice of application for leave to apply for judicial review on 12 September 2017. He was not requested for an oral hearing.

Allegations of the applicant

2.The applicant had claimed that he and his family members were the supporters of the Congress Party (“CP”) although the applicant is not a member of the party but he showed his support by accompanying CP leaders and other important figures to attend party rallies and putting up posters and gathering support in the locality for the party.

3.As a result, in March and July 2013, he was threatened and assaulted by the members of an opposition political party, Shironmani Akali Dal Party (“ADP”), as a result of which he had made a report at the Sirhali Police Station but the officers at the police station refused to accept his complaint. The applicant then went into hiding and stayed at his sister’s home which was nine hours by bus from where he lived and subsequently he left India in February 2014. During the time he was in hiding, he did not have any trouble from his enemies. So in March 2014, he came to Hong Kong and he was voluntarily repatriated to India subsequently. Whilst in India, he again participated in CP’s election campaign and subsequently was again assaulted by the opposition party members. He fled India again and this time upon arrival in Hong Kong, he sought protection by lodging a non‑refoulement claim.

4.His claim was analysed by the Director and the Adjudicator under all applicable grounds:

a. Risk of Torture as defined in Part VIIC of the Immigration Ordinance, Cap 115: the definition being the same as that found in Article 1 of the Convention against Torture in other Cruel, Inhuman or Degrading Treatment or Punishment (torture risk);

b. Risk of Torture or Cruel, Inhuman or Degrading Treatment or Punishment (“CIDTP”) and the risk of deprivation of right to life as respectively specified under Article 3 (BOR 3 risk) and Article 2 (BOR 2 risk) of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

c. Risk of persecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (persecution risk); and

d. Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 6, International Covenant on Civil and Political Rights(ICCPR).

5.The Adjudicator confirmed the decision of the Director.

6.The applicant’s affirmation nearly stated that he feels his life would be in danger if returned to his country as he did not feel it was safe for him there. I have examined and scrutinized the decisions of the Adjudicator and the Director to ascertain whether any errors of law had been made. I have analysed the appeal with the high standard of fairness as required. I have also considered whether the application of the enhanced Wednesbury test was satisfied.

7.I now found no failings on the part of the Adjudicator nor did I find any errors of law nor any evidence of procedural unfairness. The Adjudicator had adhered to a high standard of fairness. There is no realistic prospect of success and I refused to grant leave for judicial review.

Dated 25^th day of April 2018.

	(Anthony Cheng)
	for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or his solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent/Handed to the Applicant/ the Applicant’s solicitors on 25/4/2018 [Dilbag Singh]		Sent/Handed to the Putative Respondent/ the Putative Respondent’s solicitors / such Putative interested parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 25/4/2018 Torture Claims Appeal Board (Putative Respondent) (Ref. No.: USM 1351/15/4/43/IN328) Director of Immigration (Putative Interested Party) (Ref. No: QA T/C 245/15) (Formerly RBCZ 57/15)

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