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

HCAL 1875/2018

[2020] HKCFI 1848

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1875 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Decision dated 19 June 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not request an oral hearing.  The Court will 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 was amended by adding the Director of Immigration (“the Director”) as interested party.

The applicant

4.The applicant is an Indian national.  He came to Hong Kong on 4 August 2015 illegally.  He surrendered to the Immigration Department on the same day.  He claimed that, if refouled, he would be harmed or killed by the people of Shiromani Akali Dal (the “SAD”) and its alliance Bharatiya Janata Party (the “BJP”) because he was the supporter and the leader of the youth wing of a rival political party, the Indian National Congress (the “INC”).

5.The applicant claimed that his brother was the leader of the youth wing of the INC.  However, in 2011, he was attacked by members of SAD and was seriously injured.  He was unable to carry on with his duties.  INC asked the applicant to take his brother’s place in the youth wing.  The applicant agreed.  In 2014, whilst the applicant was riding his motorbike, he was chased and attacked by three SAD members, who were also on motorbikes.  They used iron rods to attack him.  As a result, his cheek was broken, right eyebrow bone and the right side of his mouth were slashed and his right calf was fractured.  He had to be admitted in hospital for medical treatment for 1.5 months.  It took 6 to 7 months for recovery.  He took his family’s advice and left India for Hong Kong in order to avoid the SAD members.

The Director’s Decision

6.The Director considered his application in relation to the following risks:

a.risk of torture under Part VIIC of the Immigration Ordinance, Cap 115, (“the Ordinance”) (“Torture risk”);

b.Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (Risk of violation of the right to life) (“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 Notice of Decision dated 17 August 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.  The Director found that it was not credible that he would have any real risk of harm if he returned to India [12-14]; that state protection would be available to him [15-21] and that relocation was an option open to him [22-26].

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision.  He attended a hearing before the Adjudicator.

9.By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decision.

10.The Board considered the applicant’s evidence and found that it did not accept that he was involved in the youth wing of INC; that his brother was injured; that he was injured by the SAD members; that he was interested in politics and he was of any adverse interest to the SAD or other political parties in India.  It finally concluded at paragraph 113:

“ … the Board rejects them [his claims], both individually and cumulatively, in their entirety. The only aspect of the claims the Board is prepared to accept is that the Appellant’s uncle has been involved with the Congress Party at the local level.”

11.Therefore, all grounds in support of his claim failed.

Application for leave to apply for judicial review

12.The applicant filed Form 86 on 10 September 2018 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of his application, he said that he could not go back to India because his life would be in danger.  He did not say what error the Board had committed in coming to its decision. 

DISCUSSION

14.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.  See paragraph 10 above.

15.The Board did not accept the applicant’s factual evidence in support of his claim.  He therefore has no factual basis in support of his claim.

16.In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them.  The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

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 is unable to show that he has any reasonable prospect of success for his intended judicial review.

CONCLUSION

19.I therefore refuse to grant leave to the applicant to apply for leave for judicial review.  Accordingly, I dismiss his application.

Dated the 4^th day of August 2020

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