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HCAL 297/2019
[2021] HKCFI 3270
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 297 of 2019
BETWEEN
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Rashpal Singh |
Applicant |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge Suffiad:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
Introduction
1. This is an application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (“the Board”) and the Director of Immigration (‘the Director”) refusing the Applicant’s claim of non-refoulement protection.
2. The Applicant, born in 1975, is a national of India. The Applicant came to Hong Kong lawfully in May 2015 and was allowed to stay as a visitor until 7 June 2015. He overstayed in Hong Kong. By written application dated 23 March 2016 the Applicant indicated his intention to seek non-refoulement protection.
Applicant’s case
3. The facts of the case forming the basis of the Applicant’s non-refoulement claim are summarized at para [22 – 24] of the decision of the Board. In a nutshell, the claim was based on the fear that, if refouled, the Applicant would be harmed or killed by people of the Shiromani Akali Dal party (“SAD”) due to political disputes. The Applicant was born and raised in Malmohri Village (“Home Village”) in the province of Punjab, India. He is a Jatt Sikh. He lives with his wife, a daughter and his parents in his Home Village. The Applicant and his whole family are supporters of the Indian National Congress (“INC”), being one of the two major political parties in Punjab. The other major political party is SAD which is affiliated with the Bharatiya Janata Party (“BJP”). The Applicant has been an active member of INC since 2010 participating in party activities including doing preparation work for election rallies.
4. In the Applicant’s district, the INC is led by one Bikramjit Singh Sikki (“Bikramjit”). Opposed to Bikramjit is one Pinderpal Laddi (“PL”) who represented SAD in the region.
5. The Applicant supported Bikramjit and canvassed votes for him. Bikramjit won the 2014 election which infuriated PL and the SAD. As a result, PL and SAD did not like the Applicant resorting to hatred and violence at times against him.
6. In 2013, when the Applicant and a group of 20 to 25 INC members were putting up posters, a larger group of about 30 to 35 people with hockey sticks attacked them. The Applicant was beaten and sustained bruises to his body but no serious injuries. He saw a junior doctor at his home village and recovered after 10 to 15 days.
7. 6 or 7 months later, during the 2014 elections, the Applicant and some 10 other INC members were attacked by about 15 people when putting up posters. The Applicant escaped unscathed but other INC members were injured. The people from the SAD threatened to kill the Applicant in particular if he continued to spread negative message about SAD.
8. After the election, they hated the Applicant even more. In April 2015, a group of some 15 people from SAD went to the Applicant’s home to look for him. The Applicant’s father and brother blocked their way and were assaulted by the group while the Applicant escaped through the back door. The Applicant tried to report to the local police but they did not listen to the Applicant as the police were under the influence of SAD. The Applicant, however, did not know the identity of the attackers.
9. After the attack in 2015, the Applicant left his Home Village and hid in his uncle’s place some 50 km. away. After one month, the Applicant’s father told him that his “enemies” had located his whereabouts. The Applicant then left his uncle’s place and went to hide in the Amritsar Sikh Temple.
10. The Applicant then left India in May 2015 for Hong Kong and was able to pass through Indian immigration without problem.
The Director’s decision
11. By a Notice of Decision dated 9 April 2018, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds for the reason that the claimed risk of ill-treatment was assessed to be not real and unforeseeable and that there are no substantial ground to believe that the Applicant will be subjected to torture by PL and the SAD people if returned to India. The Director assessed that there were no substantial grounds to believe that the acts of PL and the SAD people were inflicted on the Applicant with the consent or acquiescence of the state or that the Indian government was in any way involved. The Director further found that the Applicant did not have any problems with the Indian police or government and had never been arrested, detained or imprisoned in India, and being free to depart India through the immigration authorities
The Board’s decision
12. The Applicant attended a hearing before the Board on 10 December 2018.
13. By a decision dated 25 January 2019, the Board rejected the Applicant’s appeal / petition and confirmed the decision of the Director.
14. At the hearing before the Board, the Applicant gave quite a different story.
15. The Applicant claimed there were altogether 3 incidents. The first incident took place in 2013 (not 2014 as earlier stated) and that some 20 to 25 people attacked the Applicant’s group of 10 to 12. The Applicant said that he did not suffer any injury on that first incident because the attackers did not wish to leave any visible injury on the Applicant.
16. In the second incident which was about 4 to 5 months after the first one, the Applicant said that he was the only one who was beaten up. The attackers did not threaten to kill him but only used abusive words.
17. As for the third incident, the Applicant told the Board that it happened in January 2015 when some 20 to 25 people came to his home. He said that his father and brother were not injured on that occasion but that his mother was assaulted by the group and suffered bleeding to her lips.
18. The Applicant further told the Board that he was a mere supporter of the INC but was not a member thereof.
19. On the credibility of the Applicant, the Board accepted as true his personal and family background and that he was a supporter but not a member of INC. The Board however found the Applicant vague, evasive and not to be telling the truth as to all other matters including the threats and attacks by PL and his people. The Board found no evidence to substantiate the suggestion that SAD was affiliated with BJP and did not believe that the Indian government would assist them to track down the Applicant to harm him.
20. The Board then made an assessment separately and distinctly on each of all the applicable grounds of torture risk, persecution risk, BOR 3 risk and BOR 2 risk and rejected the Applicant’s claim for non-refoulement protection on each of them.
21. The Board further found that the protection of the police will be available to the Applicant in his home district and if necessary, internal relocation is also available to the Applicant.
Discussion
22. The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. In particular, the role of the court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.
23. When the Applicant pursued his appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore, while the court examines the decision of the Director and the Board, it is unnecessary to delve into the decision of the Director. This decision will only focus on discussing the Board’s decision.
24. In the present case, the Board did not take issue with the personal and family background of the Applicant accepting them as true. The Board however disagreed with the Applicant on the assessment of risk rejecting the allegations of the Applicant in respect of the facts giving rise to such risks. The Board also found that police protection and internal relocation to be available to the Applicant based on the COI
25. It has been said time and again that the risk of harm and availability of state protection as well as internal relocation are primarily the province of the Board and the Director. It is not for this Court to usurp those functions of the Board. This Court will not interfere with the decisions of the Board unless there are errors of law, procedural unfairness or irrationality in the decision of the Board.
26. The present complaint raised by the Applicant in his affirmation in support of his Form 86, both dated 1 February 2019, contains nothing to indicate any error of law, procedural unfairness or irrationality of the Board. The Court can see no reasonably arguable basis to challenge the findings of the Board.
27. The decisions of the Director and that of the Board are plainly reasonable.
28. Having considered both the decision of the Director and the decision of the Board, the court cannot see any error of law, irrational findings or procedural unfairness. Nor can the court see any failure on their part to apply a high standard of fairness.
29. For the reasons given, there is no prospect of success in the Applicant’s intended application. Accordingly, the court refused to grant leave for judicial review.
Dated the 4th day of November 2021
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(Allen LEE) |
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for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or his solicitors must: |
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted(Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). |
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Sent to the Applicant
on 4 November 2021
Rashpal Singh
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 4 November 2021
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 11214/18/4/224/IN2177
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 680/18 (formerly RBCZ 11417/16)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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