RE DILBAG SINGH

CACV 124/2018

[2018] HKCA 413

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 124 OF 2018

(ON APPEAL FROM HCAL NO. 613 OF 2017)

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JUDGMENT

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Hon Chu JA (giving the Judgment of the Court):

1.  This is the applicant’s appeal against the decision of Toh J (“the Judge”) given on 25 April 2018 refusing him leave to apply for judicial review.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dated 18 August 2017 dismissing his appeal against two decisions of the Director of Immigration (“the Director”) rejecting his non-refoulement claim. The first decision of the Director dated 23 March 2015 covered the torture risk[1] , persecution risk[2] and BOR 3 risk[3] while the further decision dated 31 May 2017 assessed the BOR 2 risk[4] . 

2.  The applicant is a national of India.  He first came to Hong Kong in March 2014 and was given permission to stay for two weeks.  He overstayed and was arrested by the police on 5 April 2014. Following his request for voluntary repatriation, he was repatriated to India on 26 April 2014.  On 17 January 2015, the applicant arrived in Hong Kong for a second time.  He was refused permission to land.  He raised a non-refoulement claim which was formally filed on 11 February 2015. 

3.  The applicant’s non-refoulement claim is based on his fear that if he were to return to India, he would be seriously harmed by members of a political party, Shironmani Akali Dal Party (“ADP”), due to his affiliations with an opposing political party, Congress Party (“CP”). The applicant’s case is that the ADP is the ruling party in his home village in Chohla Sahib, and the head of the council of his home village, Dalbir Singh (“DS”), often invited him to join ADP, but he refused. 

4.  The first incident relied on by the applicant took place in March 2013 when DS together with five ADP members came to the applicant’s home to demand his support for ADP.  They were all armed with wooden sticks.  DS verbally threatened to harm the applicant if he did not support ADP and the group then left.  The applicant ceased his activities in the CP after this visit. 

5.  The second incident happened in July 2013.  On that occasion, the applicant met DS and six to seven ADP members when he was returning home.  They asked the applicant to join the ADP, and assaulted him when he refused.  The applicant was slapped on his face, punched and hit with wooden sticks on his ribs and back. The beating stopped when the neighbours were alerted and intervened.  On learning that the assailants were DS and his associates, the government hospital refused to treat his injuries while the Sirhali Police Station refused to handle his complaint.  The applicant approached the leader of CP, but he also refused to help because ADP was powerful in the locality.  The applicant received some treatment from a private clinic in his home village.  He went into hiding and stayed at his sister’s home which is nine hours’ travel by bus.  In February 2014, he left India and came to Hong Kong via mainland China.

6.  The third incident took place shortly after his repatriation from Hong Kong to India.  It was around the time of general election, and the applicant assisted CP in its election campaign.  A few days before the election, when the applicant and other CP members were putting up posters for CP, DS and five to six of his supporters came up to them.  They tore down the posters and assaulted the applicant and his group with wooden sticks.  The applicant managed to escape without sustaining serious injuries.  He received treatment from a local doctor.  The Sirhali Police Station again refused to handle his report.  Shortly after that, DS went to the applicant’s home and threatened to kill the applicant if he did not stop assisting the CP in the election campaign.  The applicant ran away to stay with his uncle at Sabrah for about eight months until he took a flight to Hong Kong in January 2015.  During his stay with the uncle, he learned that ADP had won the election and had become more powerful, and DS and his associates had come to his home six to seven times to look for him as they wanted him to join their party and cease supporting CP.          

7.  The Director assessed the risk of harm from DS and his associates upon the applicant’s return to be low, taking the view that there were no substantial grounds to believe that DS and his associates had a real intention to seriously harm the applicant.  The Director did not accept there was any official involvement or acquiescence in the applicant’s dispute with DS and his associates.  It was also considered that the availability of state protection and internal relocation further lowered or negated the perceived risk of harm.  The Director accordingly found no warrant for non-refoulement protection on the ground of torture risk, persecution risk or BOR 3 risk, and by his decision dated 23 March 2015 rejected the applicant’s claim.

8.  By letter dated 9 May 2017, the Director invited the applicant to submit additional information for assessment of the BOR 2 risk.  The applicant sent a letter dated 23 May 2017 stating that he would apply for protection under the BOR 2 ground, but did not provide any additional information.  By his further decision dated 31 May 2017, the Director decided that the applicant failed to establish a case of BOR 2 risk.

9.  The applicant’s appeal against the Director’s two decisions were heard before the Board on 13 May 2016 and 5 July 2017.  By its decision dated 18 August 2017, the Board dismissed the appeal.  After analysing the applicant’s assertions, the Board did not accept the applicant’s claim that he left India for Hong Kong in 2015 out of fear of harm from DS and ADP.  The Board further assessed the future risk of harm to be very low, and was of the view that the risk would be even lower if internal relocation and availability of state protection were taken into account.  The Board concluded that the applicant failed to establish the alleged risk of harm, or any harm that would warrant non-refoulement protection. 

10.  The applicant filed the Form 86 to apply for leave to bring judicial review on 12 September 2017.  It did not contain any ground for the application.  In his affirmation made on the same day, the applicant said he was not satisfied with the Board’s Decision and that he could not return to India because he would not be safe.  He asked to stay in Hong Kong until his problem was solved.  

11.  After reviewing the Director’s and the Board’s decisions and the materials before her, the Judge refused to give leave to apply for judicial review.  She gave the following reasons at [6] to [7] of the CALL-1 Form dated 25 April 2018:

“6. The applicant’s affirmation merely [sic] stated that he feels his life would be in danger if returned to his country as he did not feel it was safe for him there. I have examined and scrutinized the decisions of the Adjudicator and the Director to ascertain whether any errors of law had been made. I have analysed the appeal with the high standard of fairness as required. I have also considered whether the application of the enhanced Wednesbury test was satisfied.

7. I found [sic] no failings on the part of the Adjudicator nor did I find any errors of law nor any evidence of procedural unfairness.  The Adjudicator had adhered to a high standard of fairness. There is no realistic prospect of success and I refused to grant leave for judicial review.”

12.  In the notice of appeal of 2 May 2018, the applicant reiterated that he cannot go back to his country at this moment because there is still danger to his life, and asked to be allowed to stay in Hong Kong until his problem is resolved.

13.  In his skeleton submission dated 19 June 2018, the applicant submits that his life in India will be dangerous because his enemies are powerful, and that the police and other government agencies have been bribed and they work under the influence of the political parties.  He also says that political parties have good network, and they can always locate him, torture and kill him. 

14.  The applicant agreed by his letter of 11 May 2018 that the appeal can be heard by two judges.  We heard the appeal on 17 July 2018. At the hearing, the applicant repeated his request to be given more time and be allowed to stay in Hong Kong longer.

15.  Having considered the applicant’s submissions and in light of the materials before us, we agree with the Judge’s decision.

16.  The only ground put forward to support the intended judicial review application is that the applicant will be in danger on returning to India.  However, the Board has considered the issue of risk of harm in detail having regard to the evidence submitted by the applicant: see [28] to [35] of the Board’s decision.  The Board concluded at [36] of the decision that the applicant was not credible.  The applicant has not pointed to any error committed by the Board in coming to this conclusion.  There is accordingly no basis to support the applicant’s contention that his life will be in danger if he returns to India.  Quite apart from this, we agree with the Board’s conclusions on the low level of the harm likely to be caused, and the feasibility of internal relocation as a means of reducing such risk, as there might be, of harm to the applicant.  There is no merit in the only ground for the intended judicial review.

17.  That aside, we also do not see any error of law or procedure in the proceedings before the Board, or any reasonably arguable basis to challenge the fairness of the process.  

18.  The intended judicial review is not reasonably arguable and has no prospect of success.  We agree with the Judge that leave to apply for judicial review should not be granted. 

19.  For these reasons, we dismiss the appeal.