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

HCAL 1275/2019

[2024] HKCFI 794

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1275 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 2 May 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 33, is a national of India. He entered Hong Kong as a visitor on 19 December 2010 and overstayed since 3 January 2011. On 10 February 2011, he was arrested by the police. Between 2011 and 2017, the applicant was convicted of multiple offences and was sentenced to imprisonment for a total of 6 years and 4 months. The applicant had made a torture claim previously, but was rejected on 15 February 2012. The applicant subsequently made a non-refoulement claim on all applicable grounds other than torture risk[1]. The claim was made on the basis that, if refouled, he would be harmed and killed by Mr Jatheydar Singh (“Jatheydar”) and Mr Davinder Singh (“Davinder”) because they disapproved his love affair with Ms Gaganpreet Kaur (“Gaganpreet”). He might also be arrested by the police due to a framed up dangerous drug case.

5.According to the applicant, he is a Hindu from the Pandit caste and supported the Indian National Congress. At the material time, he was in love with Gaganpreet, the daughter of Jatheydar and the sister of Davinder. Gaganpreet and her family were Sikhs from the Brahmin caste and supported the Bharatiya Janata Party. When Jatheydar and Davinder discovered the relationship between the applicant and Gaganpreet, they were angry because of their difference in political views and religion. They then threatened the applicant to leave Gaganpreet and beat up Gaganpreet.

6.One day in July 2009, Davinder and 4-5 of his friends confronted the applicant while he was returning home from work. They threatened him to stop calling or meeting Gaganpreet, failing which he would be killed. On a day in November 2009, after the applicant went to a canteen for tea with Gaganpreet, Davinder and his friends assaulted him with hockey sticks until he lost consciousness. The applicant was hospitalised for 7 days. During his hospitalisation, the police came and took statement, but they did not take any action against Davinder because his father Jatheydar was a friend of their commander. The applicant’s family also took the matter to the village committee and the village head merely told the two families to compromise. The applicant then relocated to his maternal grandparents’ home for recovery.

7.The applicant recovered almost a month later and returned home. He was attacked again, but managed to escape this time as he was with his friends. The applicant reported the matter to the police, but they refused his report given the close relationship between Jatheydar and their commander. They even told the applicant to leave, otherwise they would frame him up in a case.

8.In October 2010, the applicant was framed up in a dangerous drug case, which he believed was a joint plot by Jatheydar and the police. The applicant was taken to the police station and assaulted. Jatheydar was at the scene during the assault and told the police officers to hit the applicant as much as they could. The next day, the applicant was released on bail after his uncle and the village head told Jatheydar that the applicant would end his affairs with Gaganpreet.

9.The applicant received medical treatment upon bail and it took him about 2-3 weeks for recovery. Fearing for his safety, the applicant jumped bail. He moved to his maternal grandparents’ home for two months and then to his paternal uncle’s home for 7 days. On 18 December 2010, he left India for Hong Kong.

10.While the applicant was imprisoned in Hong Kong, he learnt from his friends that Jatheydar and Davinder were still seeking for his whereabouts from his family. Later on, to avoid further harassment from Jatheydar and Davinder, his parents disowned him and relocated elsewhere. The applicant also believed that the police was still after him because of the dangerous drug case.

11.The applicant was of the view that he could not seek protection from the authorities as he had no political influence nor was he able to offer bribe. He also refused relocating internally within India because he could not get any help as in Hong Kong.

12.Details of the applicant’s story can be found in paragraph 8 of the Director’s Decision dated 24 August 2017 (“the Director’s Decision”).

The Director’s Decision

13.The Director considered the applicant’s claim in relation to the following risks:

a.  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”);

b.  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

c.  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”).

14.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that the applicant encountered no problem with the Indian immigration authority upon departure in the airport and thus had doubts about his claim on the framed up case and the bail jumping. The Director was also of the view that the grudge between the applicant and Jatheydar/Davinder should have dissipated given the long lapse of time since he left India [16]-[17].

15.In any event, the Director was of the view that (i) the low intensity and frequency of past ill-treatment from Jatheydar and Davinder is indicative of a small future risk of harm upon his return to India [18]; (ii) state protection is available to him upon his return [20]; (iii) internal relocation is viable [19], [21] and (iv) the applicant’s case failed to meet any of the requirement under BOR 2 and BOR 3 risk [22]-[27] or Persecution risk [28]-[33].

The Board’s Decision

16.The applicant appealed the Director’s Decision to the Board. On 22 January 2019, the Board conducted an oral hearing. The applicant was represented by a duty lawyer at the hearing.

17.The applicant raised a new ground by claiming that Gaganpreet was killed because she had wanted to marry him and her family felt insulted. In the Notice of Appeal, the applicant claimed that he learnt about Gaganpreet’s death from his friend, while he claimed during the hearing that his family informed him about Gaganpreet’s death.

18.The Board noted that the applicant had made different claims as to his family’s and Gaganpreet’s family political affiliations as well as how he learnt about Gaganpreet’s death. The Board also found him uncooperative and evasive as he repeatedly refused to answer questions put to him. Based on such findings, the Board concluded that the applicant’s claim were not credible in their entirety. They did not accept the applicant’s claim about (i) his relationship with Gaganpreet, (ii) being beaten up and threatened by Gaganpreet’s family and (iii) his feared harm by the Indian police. The applicant’s explanation that he could not produce documents because he lost contact with his family was also not accepted [56]-[74].

19.Accordingly, the Board concluded that the applicant’s case failed to meet any of the requirement under Persecution risk or BOR 2 and BOR 3 risk [75]-[81]. The Board therefore dismissed the applicant’s appeal and confirmed the Director’s decision.

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

20.The applicant has filed Form 86 dated 10 May 2019 for leave to apply for judicial review of the Board’s Decision.

21.In the affirmation in support of his application, the applicant said that the Board disregarded his dangerous situation in his country.

DISCUSSION

22.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).

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

24.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.”

25.For the reasons the Board had given in the Board’s Decision, the Board did not accept the factual evidence in support of the applicant’s claim. Ultimately, the Board said:

“74. Accordingly, I find that the Petitioner has not established substantial grounds for concluding that there is a real risk that he would suffer serious harm at the hands of Gagan’s family, the police or anyone else should he return to India/”

26.There is no valid ground from the applicant to challenge the Board’s finding of the facts.

27.There is no reason that the Court should interfere with the Board’s finding of the facts. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

28.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 25^th 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