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

HCAL 1177/2019

[2023] HKCFI 3022

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1177 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.

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 25 April 2019 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 15 November 2015. On 16 November 2015, he surrendered to the Immigration Department for illegal remaining. On 30 August 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 Shiv Sena (“SS”).

5.According to the applicant, he was a Sikh. He had been supporting the groups which aimed to create an independent Khalistan country consisted of Sikh people. The applicant belonged to a group named Singh Sabha, in which he was responsible for distributing the leaflets and arranging the rallies. SS was the opposite party of Sabha. It aimed to force people into Hindu and eradicate the Sikh people. The conflict between the two parties had existed for a long time.

6.Later, the applicant and his boss filed a case against Anil Joshi, the key person of SS, for attacking members of Sabha. One day in around 2011, while the applicant was on the way to pick up his boss, they were followed by members of SS. Their car was intercepted and they were attacked by five enemies with metal pole and swords. The attackers also threatened them and demanded them to stop promoting Sikh. They further blamed the applicant and his boss for the case against Anil Joshi.

7.After the attack, the applicant escaped to Jalandhar city. While he did not encounter any problem there, he heard from his parents that the enemies were still looking for him. In 2013, he escaped to Gujrat to stay with his cousin. However, his cousin was also attacked by members from SS. In 2015, the applicant again escaped to Delhi, where he was trouble free. Yet, he believed that the members from SS could easily locate him. Thus, he eventually fled to Hong Kong for protection. Details of his claim are set out at paragraph 7 of the Notice of Decision dated 17 August 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

8.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”).

9.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 an unlikelihood of future risk of harm [18]-[19]; (ii) the enemies’ behaviors had shown no real intention to cause seriously harm or even kill him [20]; (iii) the problem with the enemies was private in nature [21]; (iv) state protection would be available to him [22]-[29]; and (v) internal relocation was a viable option [30]-[35].

The Board’s Decision

10.The applicant appealed the Director’s Decision to the Board. On 14 November 2018, the Board conducted an oral hearing for his appeal.

11.Having considered the claim, the Board made the following findings. The Board found that the injuries sustained by the applicant in the attack failed to attained a minimum level of severity [15]-[16]; that the applicant was only attacked once and while the enemies were allegedly armed they did not cause any serious harm or kill the applicant, which showed a lack of intention from the enemies to kill the applicant [24]; that there was no evidence that the SS members chose the applicant to target adversely [25]-[27]; that it was a private dispute without state involvement [28]; and that state protection and internal relocation were both available options [34]-[37].

12.For the above 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

13.The applicant has filed Form 86 dated 2 May 2019 for leave to apply for judicial review of the Board’s Decision.

14.In his affirmation in support of his application, the applicant did not raise any specific ground.

DISCUSSION

15.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).

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

17.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.”

18.The applicant has not been able to raise any valid reason to challenge the Board’s Decision.

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 7^th day of December 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