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

Case No.HCAL 565/2019[2023] HKCFI 919

Court

High Court CFI

Date18 Apr 2023

Judge—

Case Document

100%Judiciary

HCAL 565/2019

[2023] HKCFI 919

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 565 of 2019

BETWEEN
	Dhillon Gurdeep Singh	Applicant
	and
	Torture Claims Appeal Board/	Putative
	Non-refoulement Claims Petition Office	Respondent
	and
	Director of Immigration	Putative
		Interested Party

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 applicant applies for leave to apply for judicial review of the Decision dated 15 February 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), a hearing was fixed for the applicant to appear before the Court on 24 October 2022. However, the applicant was absent without prior notice to the Court. I shall deal with his application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant is a national of India. He entered Hong Kong illegally on 24 December 2015 and surrendered himself to the Immigration Department on 28 December 2015. On 19 April 2016 and 25 April 2016 respectively, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by Gobind Singh Kanjla from Shiromani Akali Dal (“SAD”) because he supported Aam Aadmi Party (“AAP”) in the Indian General Election 2014 (the “Election”).

5.In short, the applicant started to support the AAP in 2012 and was later promoted to be the president of the branch in his home village. He was tasked to promote the party and gather the votes. In 2014, Gobind lost in the Election and his seat at the parliament was taken away. Gobind blamed the applicant for the loss and threatened to kill him through a phone call made in the end of 2014. In January 2015, the applicant encountered a car accident, in which he was almost hit by a truck. He reported the incident to the police but they did not investigate. Feared that the car accident was the way that Gobind materialized his threat, the applicant escaped to other villages and eventually came to Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 27 April 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) there was no evidence that the car accident was orchestrated by Gobind [14]; (ii) the fact that the applicant sought information from a SAD member indicated that he was not a target for the SAD. Rather, it was a private dispute in his locality [15]; (iii) the low intensity and frequency of past ill-treatments from Gobind indicated an unlikelihood of future risk of harm [16]; (iv) state protection would be available to him [17]-[22]; and (v) internal relocation was a viable option [23].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 1 February 2019, the Board conducted an oral hearing for his appeal, during which he testified [23].

9.The Board recapped the applicant’s claim and his personal background [24]-[40]. It noted that the applicant’s home village was only one of the fifty villages in Sangrur constituency, one that Gobind lost. It was therefore not persuaded that the applicant’s home village was significant enough to make Gobind lose the Election [45]. It also noticed that the applicant had never met Gobind. The attribution of the car accident and the later relocation in fear of his revenge were purely based on hearsay information [46]-[47]. In these premises, the Board cast doubt on the applicant’s claim [48].

10.In assessing the individual grounds, the Board found that it was a private dispute with Gobind without state involvement; and that the country of origin information showed that state protection would be available [49]-[62]. Thus, the Board rejected the applicant’s claim on the ground of Persecution risk. For the same reasons, the Board also rejected the applicant’s claim on the remaining grounds [64]-[82]. The applicant’s appeal was therefore dismissed.

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

11.The applicant has filed Form 86 dated 27 February 2019 for leave to apply for judicial review of the Board’s Decision.

12.The applicant had raised the grounds against the Director. I shall, as the context permits, apply his complaints against the Director as complaints against the Board, which confirmed the Director’s Decision.

(1)  He believes that the Board’s Decision is wrong and unreasonable. He should be considered for the Right to Life protection.

(2)  The Director did not consider state acquiescence in his case as he was tortured by state agencies. The state should be liable for failing to provide protection to the applicant.

(3)  The Director had failed to considered his arguments and also the Country of Origin Information in his favour. The Director had adopted an unfair attitude towards him.

(4)  Corruption and incompetency of the administration in his country is serious. Human rights protection is not sufficient and the Director had failed attained high standards of fairness.

(5)  The Director failed to attain the high standard of fairness as required by the Wednesbury test.

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

14.The Court will bear in mind that the Board’s Decisions 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 grounds in paragraph 12 do not assist his application. They are bare assertions or personal opinions without any evidence or specifics in support. The Court of Appeal in Salim Ahmed alias MD Salim [2020] HKCA 244 held:

“20. … … general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case: Re Mizan Sikder [2019] HKCA 20 and Ibrahim v Simon Russell [2019] HKCA 1327.” See also Re Haider Khalil [2021] HKCA 223 [16].”

17.The Board did not accept the applicant’s evidence on the facts of his case. There is no valid ground 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 18^th day of April 2023

(M.O. WONG)(Ms)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 18/4/2023 Dhillon Gurdeep Singh Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 18/4/2023 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 11505/18/5/90/IN2265 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 921/18 (Formerly RBCZ 11606/16) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)