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

HCAL 2460/2018

[2022] HKCFI 3392

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2460 of 2018

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 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.The applicant applies for leave to apply for judicial review of the Decision dated 29 October 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant 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 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 6 September 2015 and surrendered to the Immigration Department on 8 September 2015. On 5 April 2016, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by members of the Shiromani Akali Dal Party (“SAD”).

5.According to the applicant, he had been an active supporter of SAD since 2008 or 2009. Oftentimes, he accompanied his aunt, Kashmir Kaur and her husband Ram Singh in promoting the SAD. Kashmir was the chairlady of SAD in their locality. However, she and Ram accepted bribes from people who wished to take governmental jobs. As some failed to get the jobs as promised, they filed a complaint to the cabinet minister and to the police for the briberies in June 2013. The complainants asked the applicant to be the witness because of his family tie with Kashmir. However, the applicant refused as he claimed that he never witnessed these misconducts. Thereafter, on two occasions in July and August 2013, the applicant was threatened by the SAD members. Out of fear, the applicant fled to Hong Kong for protection. Details of his claim are set out at paragraph 7 of the Notice of Decision dated 25 January 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

6.The Director considered the applicant’s claim 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”).

7.By way of the Director’s Decision, the Director dismissed the applicant’s claim. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated no real or foreseeable risk of harm [13]-[14]; (ii) the applicant’s claimed fear was localized [15]-[16]; (iii) state protection would be available to him [17]-[20]; and (iv) internal relocation was a viable alternative [21].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 11 September 2018, the Board conducted an oral hearing for his appeal, during which he gave evidence with the assistance of an interpreter [28].

9.During the hearing, the Board sought to clarify several aspects of the applicant’s claim. For example, the Board noticed that the country of origin information did not mention any criminal charges against Kashmir and Ram; that the applicant conceded that he was never approached by the police to be the witness; and that he confirmed that no one had been looking for him while he stayed away from his home village [27]-[38].

10.Having considered all the evidence, the Board found that the FIR produced by the applicant in support of his assertion about the criminal charges against Kashimire and Ram was of poor quality and thus attached no weight to it [40]. It also rejected to grant the applicant extra time to obtain the relevant FIRs as he was already given ample opportunities to do so [41]. The Board also noted that the applicant’s evidence, while consistent, lacked sufficient details [42]. Besides, there was no media reports collaborating the applicant’s claim about the bribery charges against Kashmir and Ram [43]. The Board further found that the material aspects of the applicant’s claim were implausible and illogical [44]. In addition, it noted that the applicant failed to mention the harms from the SAD members who forced him to be the witness in the court cases. Such omission undermined his credibility [45]-[46]. In light of these problematic evidence, the Board refused to accept the applicant’s claim as credible [47]. Even taking the applicant’s claim to the highest, the Board opined that it would not be unduly harsh for him to relocate to another village [48]-[49].

11.For these reasons, the Board rejected the applicant’s claim and dismissed his appeal.

Application for leave to apply for judicial review of the Board’s Decision

12.The applicant has filed Form 86 dated 5 November 2018 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of his application, the applicant said he rejects the Board’s Decision. He did not set out any ground.

DISCUSSION

14.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).

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

16.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.”

17.There is no valid reason to challenge the Board’s Decision.

18.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.

19.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

20.I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 14^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