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

HCAL 2743/2018

[2021] HKCFI 2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2743 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;  or
	consideration of documents and Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review of the Decision dated 30 November 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant did not ask for a hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.

The applicant

4.  The applicant is an Indian national.  He came to Hong Kong on 17 June 2016 as a visitor.  He overstayed and surrendered to the Immigration Department on 4 July 2016.  By written representation dated 4 July 2016, he raised his non-refoulement claim with the Immigration Department.

5.  He claimed that if refouled, he would be killed by Dimple Chadha and Ranjit Singh because he had, in 2015, set up a trap for Dimple Chadha, who demanded bribe to approve his proposal of rebuilding his house and he had an affair with Ranjit Singh’s wife.  Ranjit Singh knew about their affairs.  Dimple Chadha was caught red-handed when money was handed over to him.  He was charged but was granted bail.

6.  Dimple Chadha belonged to Bharatiya Janata Party, a ruling party in central India.  Ranjit Singh was the right hand man and an assistant to Dimple Chadha.  He met Ranjit Singh’s wife in a gym and they fell in love with each other.

7.  Because of the above events, he was assaulted whilst he was running his business and was kidnapped by people belonging to Dimple Chadha and Ranjit Singh.  On both occasions, he was beaten up by hockey sticks all over his body.  He suffered bodily injuries.  Whilst he was being falsely imprisoned, he managed to escape and hid himself up in other places.

8.  He had reported the matters to police, the police told him not to have troubles with Dimple Chadha.  They did not make investigations into the matters.

9.  In 2016, June, he left India for China.  He then came to Hong Kong from China.  Details of the story are set out in paragraph 6 of the Director’s Decision described below.

The Director’s Decision

10.  The Director considered his application in relation to the following risks:

a.  risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“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”).

11.  By Notice of Decision dated 8 January 2018 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.  The Director found that there was no substantial ground for believing that there would be any real and substantial risk of him being killed by Dimple Chadha and Ranjit Singh upon his return to India [10]; that there was no evidence that the state was involved and that state protection was available to him [16] and internal relocation was an option open to him [17].

The Board’s Decision

12.  The applicant appealed against the Director’s Decision.  He attended the hearing before the Board on 2 November 2018.

13.  By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision for the reasons that the Board rejected his evidence and did not accept any of his claim and consider that they had been fabricated in their entirety [46]; that relocation was a reasonable option for the applicant [48]; that the Board was not satisfied that there was a real chance, a real risk or substantial or strong grounds for believing that he would be subjected to harm amount to torture, CIDTP/torture, a risk to his life or persecution, from either Ranjit Singh or Dimple Chadha upon his return to India [49].

Application for leave to apply for judicial review

14.  The applicant filed Form 86 on 3 December 2018 for leave to apply for judicial review of the Board’s Decision.

15.  In his affirmation in support of his application, he said that he was not satisfied with the decision of the Immigration Department and he requested justification of his case.

DISCUSSION

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.… …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 did not accept his evidence and held that he had fabricated his case in support of his claim for non-refoulement.  Therefore, he has no factual basis in support of his claim.  The Board had set out the reasons in its Decision.  To take one example, he said that he was kidnapped by people belonging to Dimple Chadha and Ranjit Singh.  He was hit on the head and fainted.  He was locked up in a small dark room.  He gained consciousness.  The light was switched on and three men came into the room.  They hit him with hockey sticks on his head.  His head bled and he fell into a faint.  If Dimple Chadha and Ranjit Singh intended to kill him, he would have been killed.  However, he gained consciousness and was able to escape through a small window.  The Board did not accept his story.  There seems nothing unreasonable for the Board not to accept his story.

19.  The Court does not find any error of law or procedural unfairness in the Board’s Decision.  The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

20.  There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.

CONCLUSION

21.  I therefore refuse to grant leave for the applicant to apply for his intended judicial review. Accordingly, I dismiss his application.

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