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

HCAL 2274/2019

[2025] HKCFI 97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2274 OF 2019

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J U D G M E N T

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THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 29 July 2019 (on BOR 2 risk) of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision (“the Board’s Decision”).

2.The applicant asked for a hearing. However, he was absent at the hearing on 2 December 2024. I shall deal with his application on the papers.

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 34, is an Indian. He first arrived in Hong Kong in June 2009 and was arrested by the police for overstaying on 27 October 2009. The applicant lodged a torture claim on 1 November 2009, but he withdrew his claim on 24 July 2013 and was then repatriated to India. On 14 August 2014, the applicant entered Hong Kong illegally. He surrendered to the Immigration Department on 21 September 2015 and made a non-refoulement claim on 25 November 2015. The claim was made on the basis that, if refouled, he would be harmed or even killed by the supporters of Shiromani Akali Dal (“SAD”) and Bharatiya Janata Party (“BJP”). On 18 December 2015, the applicant was arrested by the police for possession of dangerous drugs and was sentenced to imprisonment of 4 months suspended for 2 years. On 24 June 2016, he was arrested for wounding with intent, but was acquitted on 18 October 2017.

5.According to the applicant, he became an active supporter for Aam Admi Party (“AAP”) in around late 2013 or early 2014. During the national parliamentary election campaign in April 2014, the applicant was threatened by SAD and BJP supporters to stop working for AAP. On Election Day, he and other AAP supporters were even assaulted by SAD and BJP supporters after they tried to report their vote rigging activities. Thereafter, the applicant fled to his friend’s and grandparents’ home respectively. As he was still worried about his safety, he left India for China on 21 July 2014. Eventually, he sneaked into Hong Kong from Shenzhen on 14 August 2014.

6.When the applicant last contacted his parents in January 2018, he was informed that SAD and BJP supporters were still after him. He was of the view that he could not seek protection from the police because they failed to do anything when the vote rigging by SAD and BJP was reported to them previously. He also considered internal relocation not viable because SAD and BJP had strong influences and extensive networks in India.

7.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 12 February 2018 (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 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”);

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”) and

d.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”).

9.By way of the Director’s Decision, the Director dismissed the applicant’s claim on Persecution risk, Torture risk, BOR 2 and BOR 3 risk. The Director found that (i) the nature and low intensity of past ill-treatment by SAD and BJP supporters indicated that they had no real intention to seriously harm or kill him [14]-[15]; (ii) there was no evidence showing that the applicant would be personally targeted given his grass-root participation in AAP [16]; (iii) the applicant’s delay in applying for non-refoulement protection was inconsistent with the conduct of someone genuinely in fear [17]; (iv) the claimed risk from SAD and BJP supporters was localised [18]; (v) state protection would be available and that the misconduct of individual police officers should not be taken to represent the stance of the entire Indian police force [19]-[23]; and (vi) internal relocation would be viable [24]-[27].

The Board’s Decision

10.The applicant appealed the Director’s Decision to the Board. The hearing was scheduled on 20 June 2019, for which the applicant failed to attend. As the applicant failed to provide an explanation for his non-attendance within 7 days as provided under the Ordinance, the appeal was determined in his absence [8]-[9].

11.Since the applicant failed to attend the hearing, the Board could not clarify with him matters regarding (i) his delay in applying for non-refoulement protection [56]; (ii) the claimed vote rigging and assault on Election Day [59]-[60], [72]; (iii) the political situation in India [63]-[68]; (iv) his claim that SAD and BJP supporters continued looking for him and that he would be unsafe anywhere within India [74]-[77]; and (v) his allegation against the Director for failing to consider the country of origin information (“COI”) about the unavailability of state protection in India [80]-[81].

12.The Board noted from the COI that while there might be some political violence in India, elections were generally free and fair [70]. COI also showed the availability of state protection [82]-[87]. In any event, given the applicant’s failure to attend the hearing, no weight could be attached to any of his assertions [89].

13.Based on such findings, the Board rejected the applicant’s claim on Torture risk, Persecution risk, BOR 2 and BOR 3 risk [13]-[32], [91]-[95]. 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

14.The applicant has filed Form 86 on 8 August 2019 for leave to apply for judicial review of the Board’s Decision.

15.In the affirmation in support of this application, the applicant did not raise any specific reason to challenge the Board’s Decision.

DISCUSSION

16.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).

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

18.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.”

19.The Board had assessed the merits of the applicant’s case, based upon the evidence before it. Since the applicant was absent before the Board, the Board was entitled to proceed in his absence and make the decisions by reference to the evidence before it accordingly. For the reasons given, the Board dismissed the applicant’s appeal.

20.The applicant has raised no valid ground to challenge the Board’s Decision.

21.There is no reason that the Court should interfere with the Board’s finding of the facts.

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

DISPOSITION

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

The applicant was unrepresented and did not appear.