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

HCAL 2366 /2019

[2025] HKCFI 282

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2366 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 Immigration Department’s decision dated 1 August 2019. However, having gone through the file, this Court has only found the following relevant decisions:

(1) Notice of Decision dated 24 May 2018 (“the Director’s Decision”); and

(2) Decision dated 3 March 2020 (“the Board’s Decision”), which is an appeal against the Director’s Decision.

2.  Form 86 was filed on 15 August 2019, which predates the Board’s Decision. Obviously, the applicant filed Form 86 before the Board’s hearing on 7 November 2019. Procedurally, it is impossible to apply for leave for judicial review of the Board’s Decision, which did not exist when Form 86 was filed.

3.  In the circumstances, for effective case management of this application, this Court will treat the applicant’s application as the application for leave for judicial review of the Director’s Decision, taking into consideration of the Board’s Decision, which superseded the Director’s Decision by virtue of section 23(4) of Schedule 1A of the Ordinance, the Appeal Board’s decision which states that the Appeal Board’s decision is final. See also Re: Moshsin Ali [2018] HKCA 549, Hon Lam VP and McWalters JA, 24 August 2018

“45. … the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. …”

4.  The applicant did not ask for a hearing. I shall deal with his application on the papers.

5.  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 decision in respect of which relief is sought is the Director’s Decision.

The applicant

6.  The applicant, aged 32, is a national of India. He lodged non-refoulement claim by written representations of 19 and 27 January 2017 on the basis that, if refouled, he would be harmed or killed by Mr Kulwant Singh (“his enemy”) because he refused to quit National Congress Party (“NCP”) to join Shiromani Akali Dal (“SAD”) and he had assisted NCP to win the election in August 2013.

7.  According to the applicant, he came to Hong Kong illegally on 20 February 2016 as a visitor. He overstayed. On 29 August 2016, a removal order was issued against him.

8.  The applicant’s story is that he had a NCP member friend, whom he supported. There was an election in 2013. NCP and SAD were rivalries. His enemy tried to persuade him to quit NCP to join SAD. His enemy threatened if he refused to join SAD, he would be killed. Despite the warning, he refused. He assisted NCP to win the election. Shortly after the celebration for the winning, he was attacked by his enemies and other SAD members with wooden sticks and hockey sticks. He was injured and had to stay in hospital for some time. He reported the matter to police, which did not make investigation. He had to stay in Delhi for 21 months, during which nothing untoward had happened to him. Upon advice from his friend, he came to Hong Kong.

9.  Details of the applicant’s story can be found in paragraph 7 of the Director’s Decision.

The Director’s Decision

10.  The Director considered the applicant’s claim in relation to the following risks:

a. 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”);

b. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);

c. 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”); and

d. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”).

11.  By way of the Director’s Decision, the Director dismissed the applicant’s application for the reasons that (i) the level of risk of harm from his enemy and his people upon his return to India is assessed to be low [12]-14]; (ii) the availability of state protection further lowers or negates the level of risk [15]-[20]; and (iii) Internal relocation is viable to lower the risk [21]-[26].

The Board’s Decision

12.  The applicant appealed the Director’s Decision to the Board. On 7 November 2019, the Board conducted a hearing. However, the applicant refused to give evidence to clarify the issues of fact, which the Board intended to verify his story, despite the Board having warned him that he might lose his opportunity to make clarifications to his story and for that reason the Board might not believe his evidence.

13.  The Board had made the records in the Board’s Decision:

“19. The Board asked him about his work background in India and in response he said that he had already answered the questions and his responses were in the bundle and he did not want to say anything else.

20. The Board asked if he wanted to discuss the reasons he claimed to fear returning to India, and he again repeated that he had already answered the questions and his responses were in the bundle and he did not want to say anything else.

21. The Board noted that it was not prepared to accept his claims at face value and that this was his opportunity to discuss his claims and answer questions the Board wanted to ask him, and that if he gave up that opportunity then the Board would most likely come to the conclusion that his claims were not genuine and that he had no subjective fear of returning to India and that it would affirm the Director’s decision to refuse his application. When asked to comment, he said that he understood but he did not want to say anything else.”

14.  It was on those bases the Board assessed the applicant’s evidence and rejected his story and found at paragraph 11: “…it does not accept that he is or was a person of adverse interest to any person or group, or that he has become a person of adverse interest to any such person or group since his departure.”.

15.  The applicant’s appeal was therefore dismissed and the Director’s Decision was confirmed.

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

16.  The applicant has filed Form 86 dated 15 August 2019 for leave to apply for judicial review of the Board’s Decision, which has been amended to be the Director’s Decision on the Court’s own motion.

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

DISCUSSION

18.  The role of this Court is supervisory, meaning that it ensures that the Director and the Board complied with the public law requirements in coming to their Decisions on the applicant’s claim. 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).

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

20.  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.”

21.  For the reasons given, the Director rejected the applicant’s claim.

22.  The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded. There is no valid ground from the applicant to challenge the Board’s Decision.

23.  Under section 37ZA of the Ordinance, the claimant has a duty to substantiate the claim by providing to the Director and the Board all relevant information.

“37ZA. Duties of claimant

(1) It is the duty of a claimant to substantiate a torture claim, and to this end, the claimant must—

(a) provide to the Director and (on an appeal) to the Appeal Board all information relevant to the claim and make prompt and full disclosure of all material facts in support of the claim, including any document supporting those facts;

(b) comply with every requirement, procedure and condition (including any time limit)—

(i) prescribed by this Part; or

(ii) required or specified by any person under this Part.”

24.  Importantly, the Board had given due warning to the applicant for his refusal to give oral evidence to clarify certain issues in relation to the facts of his claim and the applicant, having confirmed his understanding of the warning, explicitly maintained his refusal of answering any questions from the Board. The applicant is clearly in breach of the statutory provisions above. Advanced standards of fairness will not exempt him from compliance with the statutory provisions under the Ordinance.

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

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

DISPOSITION

27.  I refuse to grant leave to the applicant to apply for judicial review of the Director’s Decision. Accordingly, I dismiss his application.