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

HCAL 1491/2019

[2024] HKCFI 1096

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1491 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 24 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 28, is a national of India. He entered Hong Kong illegally from Mainland China on 2 August 2015 and he surrendered himself to the Immigration Department on 5 August 2015. The applicant made a non-refoulement claim on 8 September 2015. The claim was made on the basis that, if refouled, he would be ill-treated or even killed by the family members of Satveer Kaur because he eloped with her.

5.The applicant claimed that he first met Satveer Kaur in July 2014 and they started dating in October 2014. By March/April 2015, they planned to get married. According to the applicant, Satveer Kaur came from a very rich family. Her father was a landlord and her family had close connection with the senior members of the Indian National Congress. Due to their difference in background, they knew that their family would not consent to their marriage. Therefore, in early May 2015, the applicant and Satveer Kaur eloped away from their hometown and stayed at a friend’s home. They held a party there with three friends during which the applicant put a ring onto the ring finger of Satveer Kaur. However, they did not go through any formal wedding procedure according to Indian tradition or law, so that they could not be considered as a married couple.

6.One day while the applicant was in a supermarket, his friend told him that Satveer Kaur’s family came and forcefully took her away. Subsequently, another friend told the applicant that Satveer Kaur was killed by her family because she had dishonoured them. Upon hearing such news, the applicant felt unsafe staying in India because Satveer Kaur’s family had found out his whereabouts so that he might be the next one to be killed. The applicant therefore decided to leave India. He left for Mainland China on 22 July 2015 and sneaked into Hong Kong eventually on 2 August 2015.

7.The applicant maintained contact with his family since arriving in Hong Kong. In around May 2018, he was informed that Satveer Kaur’s family went to his home twice asking for his whereabouts. They also threatened to kill the applicant once they found him.

8.The applicant was of the view that he could not seek protection from the police because they only protect the rich, but not the poor. He also considered internal relocation within India not viable because he could still be easily located by Satveer Kaur’s family given their massive connection.

9.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 27 June 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 a huge part of the applicant’s claim was based on hearsay evidence. In any event, the Director was of the view that (i) the low intensity and frequency of past ill-treatment from the family members of Satveer Kaur is indicative of a small future risk of harm upon his return to India [13]; (ii) state protection is available to him upon his return [14]-[18]; (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]-[28], Persecution risk [29]-[34] or Torture risk [35]-[37].

The Board’s Decision

12.The applicant appealed the Director’s Decision to the Board. On 15 November 2018, the Board conducted an oral hearing.

13.Having considered the applicant’s evidence, the Board found the applicant dishonest and unreliable, and that he was not a genuine claimant. The Board considered the centerpiece of his story implausible. They were not convinced of the elopement and the killing of Satveer Kaur. The Board also noted that the applicant applied for and received his passport even before meeting Satveer Kaur for the first time, so that it is unbelievable that the applicant came to Hong Kong because of the claimed threat [30]-[33].

14.Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirement under Torture risk [19]-[29], [34]-[42], [45]-[46], BOR 2 and BOR 3 risk [47]-[53] or Persecution risk [54]-[62]. Furthermore, state protection and internal relocation were also available to him [43]-[44], [63]-[66]. 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

15.The applicant has filed Form 86 dated 3 June 2019 for leave to apply for judicial review of the Board’s Decision.

16.In support of his application, the applicant said he is not satisfied with the Board’s Decision and submitted the grounds below.

(1)  The Board’s Decision is not transparent because it did not base on facts.

(2)  The Board gave its decision without inquiry about the actual ground report of his case.

(3)  Honour killing is very common in his state and his case also belongs to this kind of cases. The girl whom he loved had been killed by her own family member.

(4)  The Board did not take into consideration that since the girl’s family member killed the girl, how can they spare him if he returns to his country?

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.The Board had given its reasons for not accepting the applicant’s factual evidence in the Board’s Decision. The Board had asked the applicant a number of questions in relation his elopement plan. It was not satisfied that the applicant had no plan for his marriage life after eloping. Further, the Board found:

“31.(j) The Appellant said that he applied for the passport in 2014 and got it issued on 13 June 2014. He got his passport before he met SK for the first time in July 2014. He fled his country on 22 July 2015. He said that when he applied for his passport, he had no plan to travel. Apparently, he came from a poor family and travel for leisure would have been a luxury. Why did he need a passport if he did not plan to go abroad?

32. The number and nature of inconsistencies and implausibility in his evidence were serious and have undermined its reliability. On the totality of the evidence, I am not convinced that he came to Hong Kong because of the alleged threat to kill or harm him by SK’s family. I am convinced that he had planned to leave his home country long before his meeting SK. I am not convinced that he had suffered any physical or mental pain and sufferings as he has alleged. I am not convinced that SK’s family was or is still chasing the Appellant all over his home country and wants to kill him or would have the resources to do so. The centerpiece of his story does not stand. I find him dishonest and unreliable, and that he is not a genuine claimant.”

21.Those grounds in paragraph 16 do not assist the applicant, as the Board did not accept his evidence on the facts of his claim. The applicant has raised no valid ground to challenge the Board’s finding of the facts of his claim.

22.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

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

Dated 19^th day of April 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