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

HCAL 2731/2018

[2021] HKCFI 3801

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2731 of 2018

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 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.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court (“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.

2.The applicant had jointly with his mother and other siblings applied for non-refoulement claim with the Director and upon being rejected, appealed to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”).  Before this Court, the applicant said that he was under-aged when he made his application with his mother and now his is of age, he had taken out Form 86 for this application in his own name.  According to the Director’s information, the applicant was born on 15 September 1994, now aged 27.

3.This is the applicant’s application for leave to apply for judicial review of the Decision dated 1 March 2019 of the Board (“the Board’s Decision”). 

4.The applicant asked for a hearing.  Pursuant to Order 53, rule 3(3) of the RHC, a hearing was fixed for him and he attended the hearing.

The applicant

5.The applicant’s factual basis in support of his claim relies upon his mother’s facts in their joint application. 

6.The applicant is a citizen of India.  He came to Hong Kong together with his mother on 15 January 2010 as visitors.  They overstayed and surrendered to the Immigration Department on 3 February 2010.  His mother had committed a number of immigration offences and was sentenced to imprisonment.  She was discharged and released on bail on 14 December 2012.

7.He feared that upon refoulement, he would be harmed or killed by militants or terrorists of the Babbar Khalsa and the Khalistan Liberation Force in Punjab (“the enemies”).  His maternal grandfather was a police officer, who was killed by the enemies.  He fears that if he returns to India, he will be targeted by the enemies because of his family background.  Details of the factual background are set out in paragraph 10 of the Director’s Decision described below.

The Director’s Decision

8.In a joint application with his mother, the applicant had applied for torture claim protection under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment of the Ordinance and their application was rejected by the Director on 29 April 2013. The Director then considered their joint application in relation to the following risks:

a.  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”);

b.  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

c.  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”). 

9.By Notice of Decision dated 28 October 2016 (“the Director’s Decision”), the Director refused their joint application for the reason that the claim was not substantiated.  The Director found that there were no substantial grounds for believing that the applicant and his mother would be harmed or killed upon their return to India [19] as there was no evidence to show that the enemies had real or imminent intention to harm or kill them [20]; that state protection would be available to them [23] and that internal relocation was an option open to them [24].

The Board’s Decision

10.The Director’s Decision was appealed to the Board.  The applicant and his mother jointly appeared before the adjudicator of the Board on 15 February 2019.

11.By the Board’s Decision, the Board rejected their joint appeal and affirmed the Director’s Decision.  The Board further found that it accepted the fact that the applicant’s maternal grandfather was a police officer and was killed by the enemies.  It did not accept that the enemies were still interested in him or other family members after 30 years.  It was not satisfied that there was a real chance or a real risk or substantial or strong grounds for believing that the applicant and his other family members in the joint application would suffer harm amounting to Torture risk, BOR 3 risk, BOR 2 risk or Persecution risk [35-64].

Application for leave to apply for judicial review

12.The applicant filed Form 86 on 3 December 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 rejected the Board’s Decision as the Director and the Board had disregarded his dangerous situation.

DISCUSSION

14.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.  Before me, the applicant said that he understood the Director’s and the Board’s reasons in their decisions.  He agreed that they were not wrong.  However, he asked the Court to help him.

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

“13(1) .… …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.”

16.His grounds in support of this application do not assist his application.

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.There is no evidence to show that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

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

Dated the 21^st day of December 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