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

HCAL 2570/2019

[2025] HKCFI 796

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2570 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 15 August 2019 of the Torture Claims Appeal Board dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.The applicant asked for a hearing. However, he was absent at the hearing on 10 February 2025. 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 is a national of India. The applicant arrived in Hong Kong on 28 August 2011 and was allowed to stay as a visitor till 11 September 2011. He did not depart and instead overstayed. On 28 July 2013, he was arrested by police for overstaying. The applicant subsequently lodged his non-refoulement claim. The applicant’s claim was based on his fear of being harmed or killed by a man named Kaka and Akali Dal Party (“ADP”) or Shiromani Akali Del (“SAD”) supporters because the applicant supported the Congress Party (“CP”).

5.According to the applicant, he was monitoring the voting for the election of members of the Legislative Assembly in 2007. He discovered one member of SAD was attempting to vote by forged document and he opposed to this conduct. Thought the SAD won the election, Kaka and the Aklis Dal Party were unhappy about it. Kaka and his 3 subordinates assaulted him on the street with wooden sticks. He was treated for his internal injuries with medicine. He reported this incident to police, which took on action. On another occasion, a car hit his scooter. He saw Kaka sitting beside the drive. His scooter fell on the road, but he was not injured. Upon his family’s advice, he left India for Hong Kong in August 2011.

6.Details of his claim are set out at paragraphs 13-34 of the Director’s Notice of Decision dated 14 February 2018 (“the Director’s Decision”).

The Director’s Decision

7.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”).

8.By way of the Director’s Decision, the Director dismissed his claim. In summary, the Director found that the level of risk of harm against the applicant was assessed to be low and that there was nothing to suggest that the applicant would be subjected to a real and continuous risk of being harmed [47-58]; reasonable state protection was available [59-76]; and internal relocation alternatives were available and reasonable [77-83].

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. On 11 July 2019, the Board conducted an oral hearing for his appeal.

10.Having considered the evidence, the Board found that no public officials were involved even while Kaka was a member of SAD and that the applicant had taken few legal steps to protect his rights such as pressing on with his complaint or report his motor incident to police [78-92]. In any event, having considered the COI, state protection was available as the state clearly had no interest in the applicant [114] and internal relocation was generally viable [116-124]. In conclusion, the Board held the applicant’s claim failed under all applicable grounds. It therefore dismissed his appeal and confirmed the Director’s Decision.

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

11.The applicant has filed Form 86 dated 4 September 2019 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of his application, the applicant did not raise any specific ground to challenge the Board’s Decision.

DISCUSSION

13.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).

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

15.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.”

16.There is no valid ground from the applicant to challenge the Board’s Decision.

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

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

DISPOSITION

19.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.