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

HCAL 2391 /2019

[2025] HKCFI 255

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2391 OF 2019

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BETWEEN

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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 25 July 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. 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 30, is a national of India. He lodged non-refoulement claim by written representation of 27 November 2015 on the basis that, if refouled, he would be harmed or killed by the family member of his girlfriend because his girlfriend’s family disapproved their relationship.

5.According to the applicant, he came to Hong Kong illegally on 7 August 2015 and surrendered to the Immigration Department on 11 August 2015.

6.The applicant’s story is that he and his girlfriend fell in love when they were in Class 11 and they secretly met each other. This was known to his girlfriend’s family. Her parents disapproved the relationship. Her parents had warned the girl not to see the applicant again. Her brother met the applicant on the street and warned him that if he contacted his sister again, he would kill him. On the second occasion, the applicant was riding a bicycle on the road where he saw a car with the girl’s brother inside driving close to him. He tried to get rid of them and they were following him for 10 minutes. Finally, he was able to escape from them. He had been to the police station to report the matter. However, the police refused to make a registration of the case when they learned that the girl’s brother was involved because he was closely connected with the Congress. Upon advice from his family, he left India for Hong Kong. He considers state protection will not be available as he had tried before and internal relocation is not viable as the girl’s brother may be able to locate him.

7.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 16 July 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 application for the reasons that (i) the low intensity and frequency of past ill-treatment from his enemies is indicative of the unlikelihood of future risk of harm upon his return to India [12]; (ii) state protection is available [13]; and internal relocation is viable [14].

The Board’s Decision

10.The applicant appealed the Director’s Decision to the Board. On 29 May 2019, the Board conducted a hearing. The applicant had given oral evidence before the Board.

11.Having considered the evidence, the Board found:

“27. Having considered all of the evidence, I have serious doubts in relation to the truthfulness of the Appellant’s claims and consider it likely that he has manufactured his claims for non-refoulement protection in Hong Kong. … [See paragraphs 28-31.]

31. … I consider it is neither unreasonable nor unduly harsh to require him to [live in] another part of India if he genuinely fears from his former girlfriend’s family.”

12.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

13.The applicant has filed Form 86 dated 19 August 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 to challenge the Board’s Decision.

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 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).

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 Board, for the reasons given above, found that the applicant’s claimed risks were unfounded. There is no valid ground from the applicant to challenge the Board’s Decision.

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

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

DISPOSITION

21.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.