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

HCAL 1013/2019

[2023] HKCFI 1801

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1013 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.The applicant applies for leave to apply for judicial review of the Decision dated 15 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 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 last entered Hong Kong illegally on 20 August 2015 and, on 25 August 2015, he surrendered to the Immigration Department. By way of a written signification dated 29 March 2016, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by his family, relatives and other people in the Sikh community as he converted from Sikhism to Christianity.

5.According to the applicant, he converted to Christianity in May 2013. As he had repeatedly heard that converted Christians would be persecuted by the family and the community, he did not inform anyone of his conversion. However, in June 2013, his sister found his certificate for baptism and informed his family members of his conversion. His father was furious and his uncles, a member of an influential Sikh political party, beat him with sticks and bare hands. Thereafter, the applicant escaped to village Lakhna to stay with his friend. However, a few months later in around February or March 2014, he was again located by his uncle and cousin. They started beating and punching him and his cousin even attempted to strangle him. His report to the police was of no avail. On ensuing two occasions, the applicant claimed to be assaulted by Sikh people as they were angry at his conversion. Out of fear, the applicant eventually fled to Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 28 May 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) his credibility was in doubt [11]; (ii) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [12];[14]-[16]; (ii) his problem with the alleged enemies was private in nature [13];[19]; (iii) it was his own speculation that his uncles and Sikh community as a whole still held adverse interests against him [17]; (iv) the threats from his uncle and cousin, if any, were localized [18]; (v) state protection would be available to him [20]-[29]; and (vi) internal relocation was a viable alternative [30]-[35].

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 testified.

9.Having considered the evidence, the Board noted that (i) the applicant was vague and failed to give a proper name of the institution in which he received his bachelor degree [49]-[50]; (ii) the medical reports indicated that his eye problem was not as serious as described [51]; (iii) the baptism certificate failed to support the applicant’s claimed conversion as it was not signed [54]-[59]; (iv) the documents provided by the applicant in support of his claim that he was disowned by the family were unconvincing [60]-[65]; (v) the applicant’s belief that his uncle and cousin were influential was in doubt [71]-[75]; (vi) the applicant’s explanation about why he still went to Sikh temples was unpersuasive [76]-[80]; and (vii) the applicant’s travel history also contradicted with his claim that he had to go to Sikh temples for food even after his alleged conversion [81]-[85].

10.In conclusion, the Board found that the applicant’s behaviors did not show that he wanted to avoid the Sikh community. He could have easily done so if he wanted to be safe as claimed since he had sufficient funds. Further, the country of origin information provided several alternatives [86]-[99] and, in light of the above findings, the Board rejected the applicant’s claim and dismissed his appeal.

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

11.The applicant has filed Form 86 dated 15 April 2019 for leave to apply for judicial review of the Board’s Decision.

12.In his affidavit in support of his application, he said he was not happy with the Board’s Decision and suggested the Court review it for him.

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 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 had assessed his evidence and, for the reasons given, rejected his evidence on the facts of his claim. The applicant has raised no 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.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

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

Dated the 20^th day of July 2023

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