Case Document

100%Judiciary

HCAL 1267/2018

[2021] HKCFI 633

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1267 OF 2018

BETWEEN

	Sandal Lakhwinder Singh	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 by the Applicant 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.This is the applicant’s application for leave to apply for judicial review of the Decision dated 26 June 2018 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 Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.

The applicant

4.The is an Indian national. He came to Hong Kong as a visitor on 27 March 2014. He overstayed and was arrested by police on 23 April 2014. On 25 April 2014, he lodged his non-refoulement claim with the Immigration Department.

5.He claimed that if refouled, he would be harmed or killed by Satpal, the President of Shiromani Akali dal (“SAD”) party in his home village and his associates on a dispute over a piece of land belonging to his father. Satpal lease the said land from his father. He refused to return the said land to his father upon the expiry of the lease. He offered to buy the said land from his father at a price lower than the market price. His father refused and Satpal threatened that he would take over the land. His father reported this matter to police. The police were connected with Satpal. They did not make serious investigation into the matter. Satpal and his associates pressed his father to sell the said land to him at the low price and they threatened to kill the applicant. They had assaulted his father and the applicant with weapons. His father and he were injured. He decided to leave India for Hong Kong. Details of the incidents can be found in paragraph 6 of the Director’s Decision described below.

The Director’s Decision

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

a. risk of torture under Part VII C 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 19 February 2016 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director found that the level of risk of the applicant being harmed or killed by Satpal and his associates upon his return to India was assessed to be low [13]; that state protection would be available to the applicant [16]; that internal relocation was an option open to him [19]. By Notice of Further Decision dated 2 March 2017 (“the Director’s Further Decision”), the Director rejected his claim on BOR 2 risk for the reason that he failed to establish personal and real risk of BOR 2 right being violated. [6]

The Board’s Decision

8.The appealed to the Board against the Director’s Decision and the Director’s Further Decision. He attended the hearing before the Board on 4 August 2017.

9.By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decision and Further Decision for the reasons as set out below.

(1) The Board accepted the facts of the applicant.

(2) However, the applicant failed to show that there was persecution risk if he returned to India. [23]

(3) The applicant failed to show that his fear of Saptal and his associates was well-founded. [25]

(4) State State protection would be available to the applicant. [30]

(5) On the reasons above, the Board rejected his claim on Torture risk [33], BOR 2 risk [34]; BOR 3 risk [39] and Persecution risk [23].

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 4 July 2018 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmations in support of his application, he did not set out any ground in support of his application.

DISCUSSION

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

13.In Re: Kartini [2019] HKCA 1022, 9 September 2019,the Court of Appeal held:

“13.… … 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.”

14.His grounds in support of this application is only his opinion without any evidence or specific in support of it. It does not assist his application.

15.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.

16.There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.

CONCLUSION

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

Dated the 12^th day of March 2021

	(M. O. WONG)(Ms)
	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 the Applicant’s 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 to the Applicant on 12 March 2021 Sandal Lakhwinder Singh Applicant’s ref. no: Nil.		Sent 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 12 March 2021 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 3181/16/2/147/IN745 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1328/15, RBCZ 9000371/17 (Formerly RBCZ 1698/14) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)