Rajwinder Singh and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2380/2018

[2022] HKCFI 3211

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2380 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 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.The applicants are husband and wife. This is their joint application for leave to apply for judicial review of the Decision dated 5 October 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”). The 2^nd applicant’s factual basis relies on the 1^st applicant’s facts in support of her claim.

2.The applicants did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with their 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 applicants are nationals of India. They entered Hong Kong illegally on 11 October 2014 and surrendered to the Immigration Department on 28 October 2014 for illegal remaining. On 6 January 2015, they lodged their joint non-refoulement claim. Their claims were made on the basis that, if refouled, they would be harmed or killed by (1) members of the Shiromani Akali Dal (“SAD”) and (2) a man called Resham who had a fight with the 1^st applicant during Diwali Festival.

5.According to the applicants, the 1^st applicant was politically involved with SAD’s opponent, the Indian National Congress (“INC”) whilst the 2^nd applicant had no political involvement. In 2011, the 1^st applicant refused the SAD members’ request to join the SAD. He was later promoted to the village head of INC’s young wing. In January 2012, SAD and its alliance won the Punjab Legislative Assembly election. Since then, the 1^st applicant had been facing on-going threats. One night in early 2013, the 1^st applicant had a heated argument with Resham, who also belonged to the SAD. Thereafter, Resham and his companions from the SAD threatened him with the aim to revenge. The 1^st applicant therefore hid in his friend’s place. Later, during a campaign for the INC, the 1^st applicant was assaulted by the SAD members. He again went into hiding in another village. In the end of 2013, the 1^st applicant was again located by the SAD members who assaulted him for his refusal to join the SAD. The 1^st applicant then moved to his aunt’s place.

6.On 4 July 2014, the 1^st applicant married the 2^nd applicant. One month later, on the way to his in-laws’ house, the 1^st applicant was intercepted and assaulted by SAD members. Even prior to their departures for Hong Kong, in August or September 2014, they were assaulted and verbally abused by the SAD members. Out of fear, the applicants fled to Hong Kong for protection. Details of their claims are set out at paragraph 7 of the Notice of Decision dated 24 October 2017 by the Director (the “Director’s Decision”).

The Director’s Decision

7.The Director considered their joint application in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  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”);

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”).

8.By way of the Director’s Decision, the Director dismissed their claims as the level of risk of harm upon their refoulement was assessed to be low. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [16]; (ii) state protection would be available to them [17]; and (iii) internal relocation was a viable alternative [18].

The Board’s Decision

9.The applicants appealed the Director’s Decision to the Board. On 20 April 2018, the Board conducted an oral hearing for their appeals, during which the 1^st applicant answered the Board’s inquiries [34].

10.The Board considered the 1^st applicant’s assertion that, if they went somewhere else in India, they had to register with the police station. Since the police was with the SAD, they would be traced. After reviewing the country of origin information (“COI”), the Board noted that there was a practice of tenant registration for prevention of terrorism. It further considered that such information did not assist the applicants’ case [57]-[66].

11.The Board then proceeded to assess the applicants’ credibility. It accepted that the enmity between members from the political rivalries was plausible and thus it accepted the 1^st applicant’s claimed past events [69]-[70]. However, it found that the SAD members did not actively pursue the 1^st applicant nor was the 1^st applicant ever seriously injured by them [70]-[72]. On the 1^st applicant’s own evidence, the Board found that there was unlikely any risk of harm towards the 2^nd applicant as she was never assaulted nor was she politically involved [73].

12.Insofar as the issue of internal relocation was concerned, the Board opined that, based on the aforesaid findings, it was unlikely that the SAD members were actively pursuing the applicants since they did not, in the prior incident, find the 1^st applicant within a radius of 15 kilometers [89]. The Board further addressed the 1^st applicant’s concern that, if they were registered by the landlord, the police might inform the SAD. It was of the view that, even in this circumstance, it would not be unreasonable for the applicants to relocate [93]-[94].

13.For the aforesaid reasons, the Board rejected the applicants’ claims and dismissed their appeals.

Application for leave to apply for judicial review

14.The applicants have, by Form 86 dated 29 October 2018, filed their joint application for leave to apply for judicial review of the Board’s Decision.

15.The applicants filed an affirmation dated 29 October 2018, in which they stated they disagreed with the Immigration Department as it disregarded the danger and threat they would face in their country.

DISCUSSION

16.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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

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

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

“13.… …Assessment of evidence and COI[1] 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.”

19.I have noted that the Board had, on its own initiative, researched and made reference to document: Canada: Immigration and Refugee Board of Canada, India: Requirements and procedures for tenant registration, including implementation, particularly in Delhi, Mumbai, Kolkata and Bangalore (2009-April 2013), 9 May 2013 available at http://www.reforld.org/docid/5ab3a7c4.html. (the “IRBC document”) and found that the tenant registration takes place in India. But the practice varies from state to state. It is uncertain whether the landlord will register the tenants if the applicants relocate themselves upon their return. The Board also accepted that there is possibility that the police may supply information to the applicants’ enemy to locate them under this tenant registration system. However, the Board concluded that there is not any likelihood that the applicants’ enemies would go after them elsewhere in India, or if they do, that they will be able to find them and it will not be unreasonable or too harsh to expect the applicants to relocate [94].

20.At the first brush of the Board’s finding, it seems that the Board may be too harsh on the applicants on the issue of relocation. However, having considered that the Board had assessed each of the risks of their claim and rejected them on the facts of their case and that it had also considered that there is no precedent that the party would locate its enemies by way of web connection. Furthermore, the Board’s Decision had been considered by the applicants before they lodged this application. There is no claim or evidence from the applicants to refute the Board’s finding on this issue. Under the circumstances, I consider that the Board is justified to come to its conclusion as it did in this case

21.The Court therefore 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.

22.There is no evidence that shows that the applicants have any realistic prospect of success in their intended judicial review.

CONCLUSION

23.Since the applicants’ application for judicial review has no realistic prospect of success, I refuse to grant them leave to apply for the intended judicial review. Accordingly, I dismiss their application.

Dated the 8^th day of November 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