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

HCAL 2248/2018

[2022] HKCFI 726

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2248 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 10 September 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 a national of India.  He sought to entered Hong Kong multiple times from April to May 2015 but was refused permission to land.  His last failed attempt was on 8 May 2015.  On the same date, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by his parental uncle Shamsher Singh (“SS”) and cousin Jaspinder Singh (“JS”).  He also feared that he would be harmed or killed by members of Shiromani Akali Dal Party (“SAD”).

5.  According to the applicant, in around 2011, the family land was transferred to him and JS jointly on the term that, if one of them died unmarried, the surviving one would automatically inherit the land.  Both JS and SS were supporters of SAD.  In late 2013, SS approached the applicant for the sale of his portion.  Upon refusal, on 5 January 2014, the applicant and his father found that SS destroyed their farmland.  From January 2014 to February 2015, the applicant had encountered thirteen incidents, ranging from verbal threats, attempted kidnap/attacks, actual attacks and shooting incident from SS, JS and their associates.  The applicant suffered injuries during the attacks.  His reports to the police station were of no available and he was once detailed and assaulted by the police whom he believed to be connected with the SAD.  The applicant’s several attempts to relocate to other cities in India also failed as he claimed to be attacked in these other cities.  Further, the applicant claimed that his parents were also attacked on his account.  Out of fear, he eventually fled to Hong Kong for protection.  Details of the applicant’s claim and the alleged incidents were set out at paragraph 6 of the Notice of Decision dated 31 July 2015 by the Director (“the Director’s First Decision”) and paragraphs 3 to 28 of the Board’s Decision.     

The Director’s Decisions

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

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

(2)   risk of violation of the right of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (“BOR 2 risk”);

(3)   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

(4)   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”).

7.  By way of the Director’s First Decision, the Director refused the applicant’s claim on the grounds of Torture risk, BOR3 risk and Persecution risk.  The Director refused to accept that he would face real risk of harm upon refoulement because (i) out of the thirteen incidents, the applicant only encountered SS and JS three times and sustained minor injuries.  The low intensity and frequency of past ill-treatment indicated an unlikelihood of future risk of harm [16]-[24]; (ii) state protection would be available to the applicant [25]-[30]; and (iii) internal relocation was also an option [31]-[33]. 

8.  On 21 November 2017, for the reason that he was unable to establish by evidence that his right to life under BOR2 would be violated upon his return, the Director also rejected the applicant’s claim on BOR2 risk (“the Director’s Second Decision”). 

9.  For simplicity, the Director’s First Decision and the Director’s Second Decision will be referred to collectively as “the Director’s Decisions”.

The Board’s Decision

10.  The applicant appealed the Director’s Decisions to the Board.  The oral hearings for the applicant’s appeal were held on 6 June 2016, 6 October 2016 and 23 May 2018. 

11.  The Board considered the applicant’s ground of appeal.  It noted that the applicant simply repeated his claim.  The Board observed that he had exaggerated the fact that he was assaulted thirteen times.  In fact, he was at most attacked four times as claimed in his non-refoulement claim form.  The Board also found that the applicant failed to provide any information to support the claim that the dispute was political in nature [38].

12.  In assessing the past incidents, the Board considered that the applicant was involved in twelve of them and was attacked and injured in four. Nevertheless, the injuries as described by the applicant did not attain the minimum level of severity [42].  The Board also noted that the applicant was able to escape from SS and JS easily unharmed [43].  The Board found the applicant’s assertion of his parents being attacked on his account to be speculative [44].  Based on the circumstances of the past incidents, the Board concluded that SS and JS only intended to harass the applicant for the sale of his land without the intention to seriously harm or even kill him [45].  Thus, the future risk of harm upon the applicant’s refoulement was assessed to be low [46].  In any event, the Board found that the availability of state protection and internal relocation further negated such risk [47]-[51]. 

13.  Alternatively, the Board pointed out that the root of the applicant’s claim was his entitlement over the land.  Nevertheless, despite giving him opportunities to obtain the documents, the applicant still failed to provide any objective evidence to prove his title over the land.  In this premise, the Board found that the root of his claim was not credible [52]-[54]. 

14.  For the aforesaid reasons, the Board rejected the applicant’s claim and dismissed his appeal.  

Application for leave to apply for judicial review

15.  The applicant filed Form 86 on 16 October 2018 for leave to apply for judicial review of the Board’s Decision.

16.  In his affirmation in support of his application, he said “I am not satisfied with the Decision of Torture Claim Appeal Board. So I would like to apply judicial review. I cannot go back to my home country (India) because my life is still in danger…”

DISCUSSION

17.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. 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 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

19.  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.”

20.  The applicant has not raised any valid ground to challenge the Board’s Decision. The Board had set out the reasons for its findings.

21.  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.

22.  There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

23.  I therefore refuse to grant leave for the applicant to apply for 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