Sukhpreet Singh v. Torture Claims Appeal Board / Non Refoulement Claims Petiton Office

HCAL 265/2019

[2021] HKCFI 3282

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 265 of 2019

BETWEEN

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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Suffiad:

Leave to apply for Judicial Review be refused

Observations for the Applicant:

Introduction

1.This is an application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) confirming the decision of the Director of Immigration (“the Director”) refusing the Applicant’s claim for non-refoulement protection.

2.The Applicant, a male born in 1987, is a national of India.  He came to Hong Kong in December 2013 and was permitted to stay as a visitor until 6 January 2014.  He overstayed and on 9 January 2014 surrendered himself to the Immigration Department and made a formal claim to the Director for non-refoulement.

3.Subsequently, the the Applicant obtained the services of the Duty Lawyer Service to assist him to complete and lodge a Non-refoulement Claim Form (“NCF”) with the Director on 11 January 2018.  In the NCF, the Applicant claimed that he was at risk of being seriously harmed in India by his girlfriend’s parents who objected to his relationship with their daughter.  The Applicant attended an interview with an Immigration Officer on 24 January 2018.

4.By a Notice of Decision dated 26 January 2018, the Director rejected the Applicant’s application for non-refoulement protection.

5.The Applicant appealed the Director’s decision to the Board by filing a Notice of Appeal dated 5 February 2018.

6.The Applicant appeared before the Board at a hearing on 9 November 2018.

7.On 14 January 2019 the Board rejected the Applicant’s appeal and confirmed the decision of the Director.

8.By a Form 86 dated 28 January 2019, the Applicant now seeks leave to apply for judicial review against the decision of the Board.

Applicant’s case

9.The Applicant’s case as presented by him to the Immigration Department in his NCF and in the interview with the Immigration Officer was that he was born in Dina village in Moga, Punjab province.  He is a Sikh and unmarried.  His parents and siblings also live in Dina.  He worked as a farmer on the family farm.

10.He started a relationship with a Hindu girl, Pooja Kumari, in secondary school but her parents objected to their relationship.  In about March 2006, the girl’s parents beat up the Applicant in the street but he was able to escape without injuries.

11.In September 2006, the Applicant and the girl ran away to Naina Devi, but a month later her parents came, found her and beat her up.  The girl’s parents began to send him threatening messages so he decided to leave India.  In September 2007 he left India for Singapore staying there until 2009. He then returned home.  The girl’s parents came to his house with some men who fired gunshots into the air and threatened to kill the Applicant.  A month later he went back to Singapore and stayed there until July 2011.

12.He returned to Punjab in July 2011. In November 2011 he found that his girlfriend had hung herself and died.  The girl’s parents blamed him for her death.  They went to the Applicant’s house, fired gunshots into the air and threatened to kill the Applicant.

13.In December 2011, the Applicant went to Singapore again remaining there until April 2012 when he returned to India and stayed in the south.  There the Applicant’s parents told him the girl’s parents were still coming to their house to look for the Applicant.  They damaged items in the house and assaulted the Applicant’s brother.  His parents told him to leave India.  He then came to Hong Kong in December 2013.

14.At the interview he provided a news clipping of another case to the Immigration Department about a love relationship where a girl’s parents killed a boy because they did not approve of the boy.  He told the Immigration Officer that these things happened a lot in India.

The Director’s decision

15.The Applicant’s claim was assessed on all the applicable grounds under the unified screening mechanism (“USM”) including torture risk under Part VIIC of the Immigration Ordinance, BOR 2 risk under Article 2 of the Hong Kong Bill of Rights Ordinance, BOR 3 risk under Article 3 of the Hong Kong Bill of Rights Ordinance and persecution risk under Article 33 of the 1951 Convention relating to the Status of Refugees.

16.Having considered each separate limb of claim under the USM, the Director found the Applicant’s non-refoulement claim to be unsubstantiated for the reasons given in the Notice of Decision of the Director dated 26 January 2018.

The Board’s decision

17.The Applicant attended a hearing before the Board held on 9 November 2018 and gave evidence with the assistance of a qualified interpreter in the Punjabi language.

18.The Applicant confirmed all the evidence he had given to the Immigration Department as contained in the NCF and at his interview with the Immigration Officer.  However, the Applicant refused to answer any of the questions put to him by the Board in relation to the details of his case, saying that he had answered all those questions previously and did not want to say anything more.

19.Despite the fact that the Board made it clear to the Applicant that the Board had to assess the reliability of his evidence and his claims and had to test the veracity of his evidence provided by him to support his claims, the Applicant indicated that he understood but still did not want to say anything more than what he had already said.  Even when the Board indicated to the Applicant that the Board was not prepared to accept his claims at face value and that this was the opportunity for him to discuss his claim and answer the Board’s questions, the Applicant said he understood but still refused to answer any questions (see paras [14] to [20] of the Board’s decision).

20.Accordingly, the Board found that it had insufficient evidence to be satisfied that the events and claims raised by the Applicant were factual and concluded that it has no confidence in accepting the Applicant’s claims on the facts of the case.  Accordingly, the Board did not accept the Applicant’s claim as to what had occurred to him in India.

21.On that basis the Board found that there was no substantial grounds to believe that the Applicant faced a real risk of being subjected to torture, CIDTP, a fear of persecution or subjected to the death penalty or being arbitrarily deprived of his life.

22.Accordingly, the Board refused the Applicant’s appeal and confirmed the decision of the Director.

Discussion

23.The relevant principles on appeals in non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. The role of the court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.

24.When the Applicant pursued his appeal to the Board, the decision of the Director was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549.  Therefore while the court examines the decision of the Director and the Board, it is unnecessary to delve into the decision of the Director. This decision will only focus on discussing the Board’s decision.

25.In the present case, the Board came to the conclusion that, because of the Applicant’s refusal to answer any of the questions of the Board relating to the facts of the case, it had no confidence in accepting and was unable to accept the claims of the Applicant on the facts of this case which came only from the Applicant himself but cannot otherwise be substantiated.

26.The Applicant brings this non-refoulement claim. The onus is on him to substantiate his claim. If the Applicant does not co-operate by refusing to answer the Board’s questions on relevant factual details, then the Applicant has only himself to blame.

27.The Board, as the primary decision maker on findings of fact was well entitled to take the view that it did and to come to the conclusion that it did.  There can be no criticism of the Board for being unreasonable.

28.The present complaint by the Applicant in his Form 86 contains nothing to indicate any error of law, procedural unfairness or irrationality in the decision of the Board, nor can the court find any having gone through the decision of the Board carefully and thoroughly.

29.There is no reasonable arguable basis to challenge the findings of the Board.

30.For the reasons given, there are no prospect of success in the Applicant’s intended application.  Accordingly, the court refused to grant leave for judicial review.

Dated the 4^th day of November 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