RAJBRINDER SINGH v. TORTURE CLAIMS APPEAL BOARD / NON REFOULEMENT CLAIMS PETITON OFFICE AND ANOTHER

HCAL 1208/2021

[2021] HKCFI 3271

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1208 of 2021

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 an application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) and Director of Immigration (“Director”) dated 10 August 2021.

2.  In effect, there is no decision by the Board dated 10 August 2021.  There is, however, a decision by the Director dated 10 August 2021 refusing to entertain the Applicant’s request for making a subsequent claim.  I can therefore safely assume that the present application for leave to apply judicial review is against that decision of the Director.

3.  The Applicant is a male born in 1993 and a national of India.  He arrived in Hong Kong on 5 July 2014 and was permitted to enter as a visitor and to remain until 19 July 2014.  The Applicant overstayed in Hong Kong.  On 9 December 2015, he surrendered to the Immigration Department and lodged a non-refoulement claim in writing dated 24 March 2016.  The non-refoulement claimed for protection on all available grounds, namely, torture risk under Part VIIC of the Immigration Ordinance, BOR 2 risk under Article 2 of the Hong Kong Bill of Rights Ordinance, BOR 3 risk under Article 3 of the Hong Kong Bill of Rights Ordinance, and persecution risk under Article 33 of the 1951 Convention relating to the Status of Refugees.

4.  The Applicant’s non-refoulement claim was considered and rejected by the Director by its decision dated 14 May 2018.

5.  Initially, the Applicant filed an appeal against that decision by the Director to the Board on 28 May 2018.

6.  On 13 September 2018, the Applicant, by a written letter, informed the Board of his decision to withdraw his appeal to the Board against the decision of the Director dated 14 May 2018. The reason given by the Applicant in his letter seeking withdrawal of his appeal/petition was that his mother’s health was not good and that he is safe to go back to India.  He further stated in his letter that he understood that his withdrawal of the appeal will amount to a final disposal of his appeal to the Board and the decision of the Director dated 14 May 2018 will stand.

7.  On 20 September 2018, the Board, by letter of the same date, informed the Applicant that the Board, having considered the Applicant’s letter of 13 September 2018 applying to withdraw his appeal from the decision of the Director, and being satisfied that the application to withdraw was freely sought and that the Applicant understood the consequences of the withdrawal, and that the Applicant had a good reason for the withdrawal and that the Applicant considered it safe for him to return to India, gave direction to allow for the appeal/petition to be withdrawn and that the appeal/petition is disposed of and finally determined by the Board.

8.  The Applicant was voluntarily repatriated to India on 9 October 2018.

9.  The Applicant then departed India for Guangzhou, China, and sneaked into Hong Kong illegally through Shenzhen on 30 December 2019.  He intercepted by police on 14 May 2021.  Applicant was then detained in Castle Peak Bay Immigration Centre (“CIC”).

10.  By letters dated 18 May 2021 and 17 June 2021, the Applicant requested the making of a subsequent non-refoulement claim protection under the unified screening mechanism (“USM”).

Director’s decision of 14 May 2018

11.  The basis of the Applicant’s non-refoulement claim is the fear that if he is returned to India, he will be harmed or killed by the Indian police or other agents who are against the Khalistan movement since the Applicant is a young Sikh involved in the Khalistan movement.

12.  The Applicant’s father, also a Sikh, used to work for the Indian Army.  But in June 1984, the Applicant’s father and some of his father’s colleagues were arrested and imprisoned for some 7 months.  In January 1985, they were all dismissed from the Army.  The Applicant’s father then started taking part in the activities of Saint Bhindran Wala’s Tiger Force (“BTF”).  Subsequently, the then prime minister of India, Indira Gandhi, was murdered by her personal Sikh bodyguards.

13.  In 2011, the Applicant started to work with the Khalistan movement along with his father’s companions. They would attend BTF rallies.  He did not hold any position in BTF but was involved in a lot of its activities.

14.  The Applicant was arrested by the police on three different occasions.  The first time was in 2011, a second time in 2013 and the third time in 2014 because the police wanted to know the whereabouts of the Applicant’s father.

15.  In his interview, the Applicant said that he was imprisoned only in the second arrest for the fighting case regarding the Khalistan movement.  For the first and third arrests, he was only detained in the police station and later released after bribing the police.

16.  After his discharge from prison, he still chose to be involved with activities of BTF and the Khalistan movement, and had lived in Delhi, Mumbai, Amritsar and Uttar Pradesh after his discharge from prison.

17.  It is also the Applicant’s case that his father had fled India and gone to Japan to live after 2011.  Later in 2014 or 2015 his younger brother left India for Lebanon.  He came to Hong Kong for protection in 2014.  He did not encounter any difficulty departing India through the immigration channel.

18.  The Director found that the absence of ill-treatment by the Indian police is indicative of only a minimal future risk of harm if the Applicant is returned to India, and that the Applicant’s suffering is only of a minimal severity.  The only time he has been imprisoned was in relation to his second arrest when he was involved in a fighting case where injuries had been caused to others.

19.  The Director also found that based on the Country of Origin Information (“COI”), the availability of state protection further lowers or negates the Applicant’s perceived level of risk of harm.

20.  Thirdly, the Director assessed that internal relocation alternatives were available to the Applicant as was shown by his staying in Delhi, Mumbai, Amritsar and Uttar Pradesh after his discharge from prison which were trouble free for the Applicant before his departure to Hong Kong.

21.  Accordingly, the Director did not accept the Applicant’s fear of ill-treatment to be real and foreseeable nor that the Applicant’s fear was well founded.  The Director found no substantial grounds to believe that the Applicant will be at risk of persecution from the Indian Police or other agents who are against the Khalistan movement and the Applicant’s case did not warrant non-refoulement protection on the ground of persecution risk for all the available grounds.

22.  The Director therefore rejected the Applicant’s claim for non-refoulement protection on all the available grounds.

Director’s decision of 10 August 2021

23.  The basis upon which the Applicant requested making a subsequent non-refoulement claim was that he arrived back in Amritsar, India on 10 October 2018 but unfortunately, renewed threats were made against him again shortly after his return to India.

24.  The Congress Party (“CP”) and the Akali Dal Party (“ADP”) had joined forces in the locality of the Applicant’s home.  One Gurmeet Singh (“Gurmeet”), a rich land developer and an influential supporter of CP and ADP threatened the Applicant that he would be killed if he remained in the village.  Such threats became more frequent and serious.

25.  Gurmeet also had a land dispute with the Applicant’s family and wanted to take over the land belonging to the Applicant’s family with an area of over one hectare worth the equivalent of about HK$730,000

26.  Gurmeet and his followers had launched 2 major attacks on the Applicant since his return to India.  One in February 2019 when 6 or 7 people including Gurmeet surrounded the Applicant hitting him with hockey sticks and some even holding guns.  The Applicant suffered bruises to his body from being hit.

27.  The second attack in May 2019, while on his way to the Amritsar Golden Temple, the Applicant was attacked by Gurmeet and 5 others with hockey sticks and swords.  The Applicant suffered injuries to his right wrist and left leg but managed to escape the attack.  He was treated at a local hospital and admitted for several days.

28.  The Applicant hid in Amritsar after his discharge from hospital but learned from his mother that Gurmeet had looked for the Applicant at his home and made demands that the Applicant should cease with the Khalistan movement and should also transfer his family land to Gurmeet, failing which Gurmeet would frame up the Applicant in a false court case.

29.  The Applicant did not report this matter to the police for fear of Gurmeet’s influence.

30.  The Applicant went to Delhi to stay with a friend but feeling unsafe, decided to apply for visa to China and to escape to Hong Kong.

31.  The Applicant further stated that there are documents available in India to show that the land in question belonged to his family and also medical records to show that he was admitted to hospital for several days after the second attack, and that he will be able to obtain such documents from India when released from his detention in CIC.

32.  The above basis for the Applicant’s request for making a subsequent non-refoulement claim was assessed by the Director.  In so doing, the findings and facts made by the Director in his decision of 14 May 2018 rejecting the Applicant’s non-refoulement claim were taken into consideration.

33.  The Director also took the view that the claimed threats from the Indian police and other agents who are against the Khalistan movement had already been considered in the Director’s decision of 14 May 2018 and they do not constitute a significant change of circumstance.

34.  The Director then went on to assess the alleged threats and attacks coming from Gurmeet and found that had Gurmeet and his followers really wanted to kill the Applicant, they had every opportunity to do so especially on the occasion of the first attack, when some of Gurmeet followers were armed with guns and had completely outnumbered the Applicant.

35.  The Director further found that even if Gurmeet wanted to frame up the Applicant, there is no credible evidence to show that the Applicant cannot receive a fair trial in India.

36.  On the basis that when the Applicant sneaked back into Hong Kong in December 2019, and it was only after one year and five months later, when he was arrested in May 2021, that the Applicant requested for a subsequent claim for non-refoulement protection.  This was enough to cast doubts on the veracity of the Applicant’s claim.

37.  Accordingly, the Director did not accept that there has been a significant change of circumstances since the initial non-refoulement claim by the Applicant was finally determined.

38.  The Director therefore refused to accept the Applicant’s request for making a subsequent claim for non-refoulement protection.

Discussion

39.  In the present case, the starting point for the Court must be that the withdrawal of the appeal to the Board by the Applicant as indicated by him in his letter of 13 September 2018, coupled with the acceptance by the Board of that withdrawal as indicated in the Board’s letter of 20 September 2018, constituted a valid withdrawal of the appeal by the Applicant.

40.  Once that premise is reached, the words of the Court of Appeal in the case of Re Das Purnima Rani [2019] HKCA 669 at [41]-[42] is aptly applicable where it was held:

“41. Once the Board dismisses an appeal against the Director’s refusal of a non-refoulement claim upon a valid withdrawal or abandonment of the appeal by the claimant, in the sense of being the result of a deliberate and informed decision, the appeal is no longer extant and the Board becomes functus officio with no jurisdiction to take any step regarding the appeal. As analysed by DHCJ Yee at [36]-[40] and [47]-[48], s 37V(2)(b) of the Ordinance stipulates that a torture claim rejected by the Director is finally determined when the appeal against it, if one were lodged, was disposed of. Notwithstanding the lack of determination on the merits, the dismissal of an appeal on its withdrawal nevertheless disposed of the appeal. Otherwise, not only would there be no finality in the determination of such claims, much room would be created for abuse by claimants desirous of delaying their removal from Hong Kong by making last minute withdrawals and then subsequently applying for reinstatement of the appeals.

42.  The only option left to the claimant who has validly withdrawn his appeal to the Board is to make a fresh non-refoulement claim under s. 37ZO (2) if he can fulfil the requirements in sub-ss (a) and (b) thereunder.”

41.  Sub-section (2) of section 37ZO of the Ordinance provides as follows:

“(2) A person may make a subsequent claim if the person provides sufficient evidence in writing to satisfy an immigration officer that –

(a) there has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and

(b) the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.”

42.  Sub-section (3) of section 37ZO of the Ordinance further provides:

“(3) In deciding whether or not a person may make a subsequent claim under subsection (2), an immigration officer may take into account any finding of credibility or fact made by an immigration officer or the Appeal Board in relation to a torture claim previously made by the person.”

43.  It is therefore clear from the provisions of the law cited above, that where the Applicant is asking to be allowed to make a subsequent claim for non-refoulement protection, the onus is upon the Applicant to show that there has been a significant change of circumstances.  Moreover, such significant change of circumstances, when taken together with the material previously submitted by the Applicant in support of his non-refoulement claim would give the subsequent claim a realistic prospect of success.

44.  In rejecting the Applicant’s request for making a subsequent claim, the Director had assessed thoroughly the factual basis provided by the Applicant and decided that they was not sufficient for the Applicant to show a realistic prospect of success.  Basically it was a fact finding exercise carried out by the Director in coming to his decision of 10 August 2021.

45.  The Applicant now seeks leave for judicial review of that decision of 10 August 2021 of the Director.

46.  In an application for leave for judicial review, it is not for the Court to usurp the Director in his findings of facts.  That is a matter well within the province of the Director.  The function of this Court is to review that decision of the Director to see if there are any errors of law, procedural unfairness or irrationality.  None such has been alluded to by the Applicant in this application for leave.  All that the Applicant has said in his affirmation in support of his Form 86 application for judicial review dated 30 August 2021 is that he did not agree with the decision of Torture Claims Appeal Board (sic) and wanted to file judicial review against that decision.

47.  In the absence of any errors of law, procedural unfairness or irrationality in the decision of the Director of 10 August 2021, I decline to grant leave to the Applicant 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