BALJINDER SINGH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL426/2017

[2018] HKCFI 680

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 426 of 2017

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1.  The applicant is an Indian national who arrived in Hong Kong on 23 December 2013 and overstayed his visa before surrendering himself to the Immigration Department on 9 January 2014.  He did apply for refugee status at the Hong Kong office of the UNHCR and then lodged a non-refoulement protection claim as well.  The Director of Immigration (“Director”) rejected his claim on 20 January 2017.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 13 July 2017.  The applicant filed a notice of application for leave to apply for judicial review on 19 July 2017 and requested an oral hearing which was set down for 14 December 2017.  The applicant appeared in person having had his application for legal aid refused.

2.  The basis of the applicant’s claim is that if he were to return to India he would be harmed or killed by members of the Congress Party (“CP”) and the Akali Dal party (“ADP”) because he and his family are supporters of the Khalistan movement (“the movement”) and his father is a prominent figure in his village for the movement.  Both the Director and the adjudicator of the TCAB set out the applicant’s claim and evidence in detail in their decisions therefore, I only intend summarise it here.

3.  The applicant received 12 years of education and worked as a farmer with his father on family land.  The movement his family support fight to establish an independent Sikh country in the Punjab; his grandfather was shot dead by members of ADP for his support for this movement when the applicant was very young.  His father is an activist travelling around the Punjab and the applicant has attended rallies with him in the past but the ADP and CP are very hostile to the movement.  The applicant has seen them beat up movement supporters.  The applicant and his brother are known in his village because of his father’s active participation in the movement.  About a quarter of the 800 households in the village support the movement.

4.  During elections those that supported the movement would call for a boycott and ask followers not to vote which made political parties in their village angry.  The applicant had seen his father and other movement supporters assaulted, threatened, arrested and detained at the instigation of ADP and CP supporters who were assisted by the local police. Khalistan supporters were not allowed to set up booths during elections.  During the election in 2013 in his district the applicant’s father was arrested with other movement supporters and charged but he would not tell the applicant about the charges and his court case.

5.  One day in September or October 2013 the police arrested the applicant’s father and detained him for several days.  When he was released he advised the applicant and his brother to leave India immediately because he was sure that ADP and CP opponents were trying to frame them both for false charges.  He himself had a responsibility to the movement and did not leave.  His father arranged for the applicant to fly to China on 20 December 2013.  Some Indian nationals there advised him to go to Hong Kong to seek asylum.  His father had arranged for his brother to go to Doha in early 2014.

6.  The adjudicator, as did the Director, analysed the applicant’s claim under all applicable grounds;

(a)   risk of torture as defined in part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, (“torture risk”);

(b)   risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of Hong Kong Bill of Rights Ordinance Cap 383 and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”);

(c)   risk of persecution by reference to the non-refoulement principal under Articles 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“persecution risk”); and

(d)   risk of a violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 6 ICCPR (“BOR 2 risk”).

7.  The adjudicator treated the appeal as a rehearing and conducted an oral appeal hearing.  He correctly set out the law and key legal principles applicable to the four grounds.  He considered the applicant’s evidence and claim; he set out this and their questions and answers in detail in his decision.  He gave the applicant the benefit of doubt regarding the credibility of his claims.  In essence, he accepted his evidence.

8.  On his own facts, the applicant’s father was a low-level but active supporter of the movement within his home village.  He himself was a passive supporter and not actively involved nor did he actively participate in the past nor does he intend to actively participate in the future.  The adjudicator accepted that his father sent him overseas due to a subjective fear of harm arising from the father’s pro-Khalistan movement activities.  He personally had never suffered any physical or mental harm from any party he suggests he fears.  There was no evidence the applicant was the subject of any false court cases in India.

9.  The adjudicator considered and discussed relevant and objective Country of Origin information regarding the Khalistan movement since the 1990s in Punjab with the applicant.  This was relevant bearing in mind the applicant’s evidence that he was not and he will not be an active supporter of the movement if he returned to India.  This led the adjudicator to find there to be only a remote risk of harm from the police, ADP or CP.  The adjudicator also discussed at length with the applicant the viability of internal relocation.  However, because he concludes the applicant will not face a real risk of harm it is unnecessary for him to make a finding in relation to internal relocation.

10.  The adjudicator considered the persecution risk and found no evidence there was a real risk the applicant will face persecution for a convention reason if refouled therefore, his persecution risk claim failed.

11.  As a result of his findings, the adjudicator found the applicant had failed to establish he will face a real risk he would be subject to torture or CIDTP under Article 3 of HKBORO if refouled to India.  For the same reasons, the applicant had failed to establish he will face a real risk of being deprived of his right to life under Article 2.  His BOR 2 and BOR 3 risk claims failed.

12.  The adjudicator considered the definition of torture as set out in section 37U(1) of the Immigration Ordinance and found the applicant had failed to establish he will face a real risk of torture under that definition.  His torture risk claim failed.  As a result, there was no need to consider State acquiescence.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

13.  The applicant states in his affirmation that he seeks to challenge the decision of the TCAB.  His grounds are not set out clearly but he submits the adjudicator failed to properly consider and deal with Country of Origin information.  He failed to consider human rights abuses in India and whether State protection was available.  He did not receive an invitation by letter after the first dismissal by the Director from the Immigration Department to submit additional information for a BOR 2 claim.

14.  Contrary to what he told the adjudicator during the appeal hearing, he claims in the affirmation that he has been recently falsely charged with offences and was an active member of the movement which means he will be prosecuted and perhaps killed if he returns.

15.  I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application.  I find the adjudicator’s decision to be without fault.  He has analysed the material, claims and evidence carefully.  The applicant’s complaints against him and the procedure undertaken are not made out.

16.  The adjudicator has clearly considered relevant, objective, up-to-date and internationally recognised Country of Origin information; he has set it out and cited it in his decision.  From his decision, it is clear that he had an interactive conversation with the applicant about the information in hand.  Much of it supported the applicant’s evidence.  There is no merit in the applicant’s ground and submission.

17.  There was no need for the adjudicator to go into whether there was State protection or State acquiescence because of his finding that there was no risk of harm to the applicant if refouled; there was no merit in this ground.

18.  The applicant would not have received a separate letter from the Immigration Department inviting him to submit additional information to support a BOR 2 risk claim because the Director considered this applicable ground at the same time as the other three applicable grounds and dismissed it at the same time as he dismissed the other three applicable grounds on 20 January 2017.  He did not deal with the BOR 2 risk claim separately.

19.  As for the applicant’s new evidence or contradictory evidence, it was not before the adjudicator or what was considered by the adjudicator as part of the evidence that led to his decision. It would be inappropriate for this court to consider and take into account new evidence in an application of this nature.

20.  I do not find any ground that shows there was an error of law by the adjudicator.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

21.  In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.

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