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

HCAL 926/2019

[2022] HKCFI 1119

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 926 of 2019

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 25 March 2019 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 national of India.  He entered Hong Kong illegally on 23 September 2015 and surrendered to the Immigration Department on 29 September 2015. On 26 June 2016, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by Gurmeet Ram Rahim Singh (“Gurmeet”, also known as “Insan”), the leader of a sect known as Dera Sacha Sauda (“DSS”).

5.According to the applicant, in July 2015, he was approached by Gurmeet’s followers for selling or donating his land for preaching.  The price they offered was low and the applicant refused.  He was then taken to meet Gurmeet who forced him to donate the land and to convert his religion.  Gurmeet and his people threatened the applicant with gun and other weapons.  The next day, the applicant was assaulted at home by Gurmeet’s son.  A few days later, he was again attacked on the street by Gurmeet’s followers with wooden sticks.  Out of fear, he eventually fled to Hong Kong for protection.  Details of the applicant’s claim are set out at paragraph 6 of the Notice of Decision dated 15 February 2018 by the Director (the “Director’s Decision”) and paragraph 16 of the Board’s Decision described below.   

The Director’s Decision

6.The Director considered the applicant’s claim in relation to the following risks:

(1)   risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(2)   risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

(3)   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

(4)   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 way of the Director’s Decision, the Director refused his claim.  The Director found that the level of risk of harm upon the applicant’s refoulement was assessed to be low because (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [12]-[14]; (ii) state protection would be available to him [15]-[17]; and (iii) internal relocation was a viable alternative [18]-[22].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 21 November 2018, the Board conducted an oral hearing for his appeal, during which he was assisted by an interpreter [7].

9.Having considered the country of origin information on the political groups in India [21]-[23], the Board explored the applicant’s personal circumstance and his affiliations and interactions with Gurmeet and DSS [24]-[43].  In particular, the Board pointed out that certain aspects of the applicant’s claim were problematic [27].  He was also inconsistent about the features of the subject land, such as the size and value [33].  The applicant’s evidence about his encounters with Gurmeet and the alleged attacks were full of discrepancies without satisfactory explanations [34]-[42].  In these premises, the Board refused to accept that the applicant was the legal owner of the subject land or that such land was sought by the DSS members.  It was also not persuaded that the applicant was a target of the DSS for refusing to sell the subject land to them [44].  As a result, the Board found that the applicant’s evidence was not credible.

10.For the above reasons, the Board rejected the applicant’s claim and dismissed his appeal.     

Application for leave to apply for judicial review

11.The applicant filed Form 86 on 4 April 2019 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of his application, he said he was not satisfied with the Board’s Decision and he could not go back to India.

DISCUSSION

13.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

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.The Board has given its reasons in support of its Decision. The applicant has not raised any valid ground to challenge the Board’s Decision.

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 that shows that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

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

Dated the 25^th day of April 2022

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