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

HCAL 1710/2018

[2019] HKCFI 2139

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1710 OF 2018

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 be 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 12 February 2015 illegally.  He was arrested by the police on 23 February 2015.  He then lodged a non‑refoulement protection claim on all applicable grounds.  His claim was dismissed by the Director of Immigration (“the Director”) on 10 January 2018.  He filed a petition/appeal to the Torture Claims Appeal Board (“TCAB”) on 23 January 2018.  There was a hearing date, 6 July 2018 and subsequently his appeal/petition was dismissed on 16 August 2018.  

2.  The applicant filed a notice of application for leave to apply for judicial review on 30 August 2018.  He did not request an oral hearing therefore; I intend to consider his application on the papers.

3.  The basis of his claim is that if he were to return to India, his life would be in danger.  He would be harmed or killed by members of the SAD party because of a land dispute.  The applicant worked as a farmer on his family land from 2011 to 2015.  The land was owned by his family but was coveted by his neighbour called Nitta who was a member of the village council as well as connected to the SAD party.  It also opposed the inter‑caste relationship his daughter had with the applicant.  There was harassment by Nitta and others from October or November 2012 until the applicant’s father and family were threatened in 2013.  They were told that if they did not leave, there would be trouble.  The police paid no attention to the threats reported.

4.  The applicant was also in a relationship with Nitta’s daughter from when they were fellow students at school.  They kept their relationship a secret because they belonged to different social costs and it was prohibited for them to have a relationship. The applicant was spotted at Nitta’s house celebrating his birthday on 17 July 2014.  Nitta’s daughter was beaten and she got a message to the applicant that her family were very angry and wanted to kill him.  The applicant immediately left home and stayed another village the relative.  He stayed there for a few months before moving on to another relative.  In December that same year, they met up in secret in a city for a few hours but he was seen by member of her family and beaten unconscious.  He was hospitalised for a few days.  After his discharge from hospital, he decided to leave India for his own safety.

5.  Both the Director and the adjudicator set out the applicant’s claim in detail in their decisions.  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”).

6.  The adjudicator treated the appeal as a rehearing.  He correctly set out the law and key legal principles for the four applicable grounds.  He set out the applicant’s evidence in detail as well as his consideration and analysis of it.  The adjudicator found that even if the applicant’s claim was credible and he was telling the truth, he could not succeed in a non-refoulement protection claim.  His problems were entirely personal in nature; a land dispute with a neighbour and a forbidden relationship with the neighbour’s daughter.

7.  The adjudicator found there to be no foreseeable risk, real and personal risk of being subjected to torture or a real chance of a reasonable likelihood of the applicant being persecuted if he returned home. The adjudicator found the applicant was unsuccessful in showing he was at risk of torture, unable to invoke the protection of BOR 2 or BOR 3 and could not prove a persecution risk for a refugee Convention reason for the purposes of a non‑refoulement protection claim.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

8.  In the applicant’s notice for leave to apply for judicial review, he neither names the TCAB or the Director as proposed respondents but in any event, I take the view that the proper approach should be that this application of leave to apply for judicial review is sought against the decision of the TCAB only.  The applicant has already utilised the channel of appealing the Director’s decision to the TCAB.  To seek to judicial review both decisions is not the right course of action to take; there is no room for a judicial review of the decision of the Director as well unless in very specific circumstances.  Those circumstances do not arise here.

9.  The supporting affirmation does not list any grounds for seeking leave.  The applicant only says that the decision made by the Director should be rejected because the Director did not consider the dangers and threats he faced in India if he were to be deported.

10.  Despite the lack of substance or grounds, I have nonetheless considered the adjudicator’s decision with rigorous examination and anxious scrutiny as required.  I find the adjudicator’s decision to be without fault.  He considered and analysed the applicant’s evidence and given full reasons for his finding that the applicant is not at risk of torture or able to rely on any applicable ground.  I do not see any error of law made 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.  In fact, the same applies to the decision of the Director.

11.  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