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

HCAL 2263/2019

[2025] HKCFI 95

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2263 OF 2019

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 1 August 2019 (on BOR 2 risk) of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s 2^nd Decision (“the Board’s 2^nd Decision”). However, since the Board’s 2^nd Decision depended on the facts of his case as found by the Board in its Decision dated 25 August 2016 (“the Board’s 1^st Decision) on the Torture risk, BOR 3 risk and Persecution risk, this Court will also take into consideration of the Board’s 1^st Decision in the assessment of the application.

2.  The applicant asked for a hearing. He appeared before the Court on 2 December 2024.

3.  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 Director of Immigration is the interested party.

The applicant

4.  The applicant, aged 33, is an Indian. He was refused permission to enter Hong Kong on 24 February 2016 and he made a non-refoulement claim on the same day. The claim was made on the basis that, if refouled, he would be harmed or even killed by members of Shiromani Akali Dal (“SAD”) because he was a supporter of the Indian National Congress (“INC”) and refused to join SAD.

5.  According to the applicant, he became an INC supporter in 2013 under the influence of his family. Around 10 days before the municipal election in July 2015 (“the Election”), the applicant was threatened to quit INC and join SAD. On Election Day, the applicant confronted several voters outside a polling station as he suspected that they were making multiple votes, after which he was assaulted by them with bare hands. When the applicant reported the assault to the police, he was driven out of the police station and was even hit by a long wooden stick. In August 2015, the applicant was attacked by some SAD members with hockey sticks and baseball bats. He fled to his aunt’s home.

6.  At around the end of November 2015, the applicant started to receive threatening phone calls, which he believed were made by SAD members. Due to the continuous threats, the applicant fled to Thailand on 26 November 2015. A month later, he returned to his home in India. Since his return, he started to receive threatening phone calls again. On one or two occasions, some people even threw stones at his home and threatened to kill him. A week later, the applicant fled to his aunt’s home again.

7.  At around the end of January 2016, four unknown men confronted the applicant on the street. They hit his elbow and threw baseball bats at his back. In February 2016, the applicant relocated to New Delhi. Despite nothing eventful had happened, the applicant still felt unsafe. He therefore left India on 23 February 2016 and arrived in Hong Kong the following day.

8.  The applicant was of the view that he could not seek protection from the police because they failed to provide him with any assistance when the matter was reported to them previously. He also considered internal relocation not viable because of the identity card requirement in India and that SAD was powerful enough to locate him anywhere.

9.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 6 May 2016 (the “Director’s 1^st 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 1^st Decision, the Director dismissed the applicant’s claim on BOR 3 risk, Persecution risk and Torture risk. The Director found that (i) his weak knowledge about the details of the Election indicated that he was not actively involved in the election campaign of INC [11]; (ii) the applicant would unlikely attract adverse interest from SAD given his grass-root participation in INC [12]; (iii) the low intensity and frequency of past ill-treatment by SAD members showed that they had no real intention to seriously harm or kill him [13]; (iv) state protection would be available [14]; and (v) internal relocation would be viable [15]-[20].

12.  In the Notice of Further Decision dated 10 August 2017 (the “Director’s 2^nd Decision”), the Director dismissed the applicant’s claim on BOR 2 risk. The applicant supplemented that he feared harm from family members of his girlfriend because they objected to their relationship [6]. The Director however had doubts towards the credibility of such claim as it was never mentioned before [10]. In any event, such matter was purely a private dispute and that the low frequency/intensity of past ill-treatment from his girlfriend’s family further demonstrated they had no real intention to kill him [11].

The Board’s Decision

13.  The applicant appealed the Director’s 1^st Decision to the Board. On 12 August 2016, the Board conducted an oral hearing.

14.  Upon consideration of the country of origin information (“COI”) in relation to the voting procedure in India [21]-[29], the Board found the claimed election fraud illogical and was also inconsistent with the COI [38]-[39]. The applicant’s lack of knowledge towards the details of the Election further showed that he was not politically active [42].

15.  The available evidence showed that the applicant was nothing more than a grass-root worker for INC, so that there was no good reason why SAD would have interest towards him [55]. His assertion about election fraud were also implausible and at odds with the COI [56]. Given that there was no evidence of state involvement in the matter and the claimed ill-treatment failed to reach the requisite level of severity, the Board rejected the applicant’s claim on Persecution risk, BOR 3 risk and Torture risk [57]-[79], [83]-[85].

16.  The applicant’s appeal was therefore dismissed and the Director’s 1^st Decision was confirmed (“the Board’s 1^st Decision”).

17.  The applicant also appealed the Director’s 2^nd Decision on BOR 2 risk to the Board. On 15 July 2019, the Board conducted an oral hearing.

18.  The Board found no good reason as to why the applicant failed to disclose his affair with his girlfriend previously. His lack of knowledge towards his girlfriend’s background further undermined his claim that her family was powerful enough to put his life at risk. Coupled with the numerous discrepancies and contradictions in the applicant’s evidence, the Board found him to be an unreliable witness and rejected his claim that he would be at risk because of his relationship with his girlfriend [22]-[28].

19.  Based on such findings, the Board considered that there was no evidence indicating that the applicant’s right to life would be at risk upon return to India. The applicant’s appeal was therefore dismissed and the Director’s 2^nd Decision was confirmed (“the Board’s 2^nd Decision”).

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

20.  The applicant has filed Form 86 dated 7 August 2019 for leave to apply for judicial review of the Board’s Decisions.

21.  In his affirmation in support of his application, the applicant did not raise any reason to challenge the Board’s Decision.

DISCUSSION

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

23.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that the adjudicator did not understand his problem properly. He asked the Court to review the Board’s 2^nd Decision.

24.  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.”

25.  There is no reason that the Court should interfere with 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 Board’s Decisions.

CONCLUSION

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