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

HCAL 1403/2019

[2024] HKCFI 630

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1403 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 29 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“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, 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, aged 53, is an Indian. He entered Hong Kong as a visitor on 14 October 2015. He overstayed since 29 October 2015 and he surrendered himself to the Immigration Department on the same day. The applicant made a non-refoulement claim by written representation on 17 May 2016, 4 October 2016 and 11 October 2016. The claim was made on the basis that, if refouled, he would be harmed or even killed by his youngest uncle, Sukhdev Singh (“Sukhdev”) as well as his cousins, Charanjit Singh (“Charanjit”) and Jagdeep Kaur (“Jagdeep”) because of a property dispute.

5.The applicant claimed that on 10 January 2013, his elder uncle, Gurdev Singh, died and left a share of his estate to the applicant in his will. This consisted of three houses, some plots of agricultural land and a car-washing workshop. Gurdev Singh’s brother and his children, namely Sukhdev, Charanjit and Jagdeep were unhappy with the inheritance arrangement. According to the applicant, Sukhdev was associated with the Shiromani Akali Dal Party (“SAD”) and had close relationship with SAD leaders.

6.In mid-2014 and early 2015, Sukhdev, Charanjit and Jagdeep started to harass the applicant over the telephone. Between February 2015 and July 2015, they took part in the multiple assaults against the applicant. There was even an occasion that the applicant was badly injured and required hospitalization for three days. The applicant had also reported the assault to the police on two occasions, but no follow-up action was taken. After the multiple assaults, the applicant decided to leave India to save his life. He therefore left for Hong Kong in October 2015.

7.The applicant maintained contact with his family since arriving in Hong Kong. He was informed that Sukhdev had taken over his assets inherited from Gurdev Singh.

8.The applicant was of the view that he could not seek protection from the police because they failed to take any follow-up action after he reported the case to them previously. He also considered internal relocation within India not viable because he was distant to the relatives outside his hometown and some of them may even be close to Sukhdev. Further, the cost of living would also be an issue.

9.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 10 April 2018 (“the Director’s Decision”).

The Director’s Decision

10.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”).

11.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that the low intensity of past assaults on the applicant is indicative of a small future risk of harm upon his return to India. His behaviours of continuously meeting Sukhdev, Charanjit and Jagdeep and his refusal to relocate were also inconsistent with people who were genuinely in fear [11]. In any event, (i) state protection is available to him upon his return [12]-[14]; (ii) internal relocation is viable [15]-[16] and (iii) the applicant’s case failed to meet any of the requirement under BOR 2 and BOR 3 risk [17]-[22], Persecution risk [23]-[27] or Torture risk [28]-[30].

The Board’s Decision

12.The applicant appealed the Director’s Decision to the Board. On 18 January 2019, the Board conducted an oral hearing.

13.Having considered the applicant’s evidence, the Board was convinced that the account of events given by him is likely to be true [27]-[28]. However, the Board found during the hearing that the applicant had been living in New Delhi until 2004, after which he moved to Chandigarh. In the meantime, all the claimed assaults happened while he was in Punjab to attend family events. Coupled with the fact that no legal proceedings to challenge the applicant’s title of the land had yet be commenced, the Board was of the view that the applicant faced no real risk of harm from his uncle and cousins at his home area in New Delhi/ Chandigarh [29]-[40].

14.Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirement under Persecution risk [42]-[44], BOR 2 and BOR 3 risk [45] or Torture risk [46]. The applicant’s appeal was therefore dismissed and the Director’s decision was confirmed.

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

15.The applicant has filed Form 86 dated 23 May 2019 for leave to apply for judicial review of the Board’s Decision.

16.In his affirmation in support of his application, the applicant said he is not satisfied with the Board’s Decision.

DISCUSSION

17.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s 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).

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

19.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.”

20.From the reasons the Board has given in the Board’s Decision, whilst the Board accepted the applicant’s evidence on the facts of his claim, however, it found that his evidence in relation to the risks he alleged could not sustain and he is not subjected to any of the applicable risks if he returns to India. There is no valid reason from the applicant to challenge the Board’s findings.

21.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

CONCLUSION

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

Dated 1^st day of March 2024.

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