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

HCAL 2832/2018

[2021] HKCFI 2807

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2832 of 2018

BETWEEN

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.This is the applicant’s application for leave to apply for judicial review of the Decision dated 6 December 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 applicant is a citizen of India. He came to Hong Kong on 10 November 2015 and was denied entry by the Immigration Department. He was repatriated back to India. On 20 November 2015, he came again. The Immigration Department also denied his entry. But this time, he had his legal representative to assist him to make non-refoulement claim. He was detained in the Castle Peak Bay Immigration Centre.

5.He claimed that if refouled, he would be harmed or killed by his cousin Jagmeet and his people because Jagmeet wanted to dispossess his land and he refused. His land was adjacent to Jagmeet’s land. Jagmeet and his people were supporters of the Shiromani Akali Dal (“SAD”), which was the ruling party. Because of his refusal of handing his land over to Jagmeet, Jagmeet had brought with him other people to attack him with wooden sticks and fists. He was injured and had to be admitted to hospital for treatment. He had complained to police, but they did not make investigation into the matter. He suspected that it was because of the close relationship of Jagmeet with SAD, which was the ruling party. Between January 2015 and October 2015, he was attacked by Jagmeet and his people 4 times. He had moved to live in different places. They were able to locate him. In November 2015, he left India for Hong Kong. Details of his story are set out in paragraph 6 of the Director’s Decision described below.

The Director’s Decisions

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 26 January 2016 (“the Director’s Decision”) and Notice of Further Decision dated 21 November 2016 (“the Director’s Further Decision”), the Director refused his claim for the reason that his claim was not substantiated.  The Director found that the level of risk of him being harmed or killed by Jagmeet and his people if he returned to India was assessed to be low [12]; that there was no evidence that there would be risk from SAD [23]; that there was no evidence that the state was involved [30]; that state protection would be available to him [34] and that internal relocation was an option open to him [42].  In paragraph 6 of the Director’s Further Decision, the Director found that he failed to establish that there was personal and real risk he was subject to BOR 2 risk.

The Board’s Decision

8.The applicant appealed against the Director’s Decisions. He appeared before the Board on 1 November 2018.

9.By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decisions. The Board had considered his evidence as compared with his evidence given to the immigration officer. It found that the discrepancies were significant and his explanations were inadequate and the accounts could not be reconciled [58]; that there was no documentary evidence to prove his title to the land and what he said that his family could not obtain the official records were inconsistent with the requirements of the Punjab Land Records Society, which, coupled with the fact that he was legally represented at the screening stage before the immigration officer, the adjudicator had doubts that he was in fact involved in a land dispute in India and even if it existed, the adjudicator took the view that he had exaggerated his claims that Jagmeet had attacked him or threatened to kill him or harm him seriously in order to advance a claim for non-refoulement protection [63 & 64]. The Board also found that it accepted that he might have difficulty in getting state protection, given the present situation in India, however, it considered that his risk, at most, was localized risk, which could be reduced by internal relocation [65-70].

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 11 December 2018 to apply for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, he said he wanted to have a review of the Board’s Decision because his life would be in danger.

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 do not assist his application. The Board had considered his case comprehensively and fairly.

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 realistic 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 5^th day of October 2021

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