SIDHU KARAMJIT SINGH v. TORTURE CLAIMS APPEAL BOARD /NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2443/2018

[2020] HKCFI 1723

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2443 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) had made two decisions, one dated 8 March 2017 (“the Board’s First Decision”) and the other dated 26 October 2018 (“the Board’s Further Decision”).  This is the applicant’s application for leave to apply for judicial review of the Board’s Further Decision. He did not seek to challenge the Board’s First Decision.

2.  The applicant is not legally represented and he did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV 8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court, by letter, invited the applicant to appear before it in order to explain the above to them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant attended the hearing on 16 January 2020.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 was amended by deleting the Board as interested party.

The applicant

4.  The applicant is an Indian national. He came to Hong Kong on 28 October 2009 and he was denied entry by the Immigration Department. He raised a torture claim application through a legal representative. His application was treated as non-refoulement claim by virtue of the Unified Screening Mechanism on 3 March 2014.

5.  He claimed that if refouled, he would be harmed or even killed by Jagmail Singh who represented Shiromani Akali Dal (“SAD”) because he refused to join SAD upon repeated invitations. Also he feared that he would be falsely accused in a dangerous drug trafficking case by the police in India.

6.  The applicant was a supporter of Indian National Congress (“INC”) whereas Jagmail was a representative of SAD in an election for the village head in 2008. Jagmail invited him to join his party. He refused. Jagmail and 7 to 9 people pushed him and his friends and shouted abusive language at him. He was not injured and did not report the matter to police. In late March 2008, Jagmail went to his home with 4 or 5 people. Again, Jagmail invited him to join his party. He refused again whereupon those people pushed him on the ground and slapped his face. Jagmail won the election and became the head of the village. He threatened to give the applicant a lesson. In early May 2008, he was attacked by some people with iron rod. He fell unconscious. He found himself in the hospital when he regained consciousness. He did not report to police. His father advised him to leave India. He came across Jagmail’s son, who was a superintendent of police in the area. He escaped and moved to live in other places. His father told him that police was looking for him in connection with a dangerous drug trafficking case. He then came to Hong Kong in October 2009.

The Director’s Decisions

7.  The Director considered his application in relation to the following risks:

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

b. Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c. 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

d. 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”).

8.  By Notice of Decision dated 4 June 2015 (“the Director’s Decision”) and Notice of Further Decision dated 6 April 2017 (“the Director’s Further Decision”), collectively called “the Director’s Decisions”, the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that the level of risk and harm from Jagmail and the police in India upon his return was low [18]; that state protection was available to him [25] and internal relocation was an option open to him [30]. His claim under BOR 2 risk was not established.

The Board’s Decisions

9.  The applicant appealed to the Board against the Director’s Decision. He attended a hearing before the Adjudicator on 30 August 2016. According to the Board, he decided not to answer any questions.

10.  By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decision.

11.  The Board considered the applicant’s evidence and found that the fact did not support Torture risk [11]; that internal relocation was an option open to him [17]; that there was no evidence that he faced a future risk of serious harm [26].  See §§5-32 of the Board’s Decision.

12.  The applicant also appealed to the Board against the Director’s Further Decision. The applicant was late in filing his Notice of Appeal and he did not give a satisfactory explanation for his delay. The Board refused to grant him extension of time for his appeal and held that his appeal was a nullity. However, it had also considered the merit of his further appeal, taking into account of the fact it found in its Decision. It came to a conclusion that nothing added to give rise to BOR 2 risk and even if he were allowed to appeal out of time, his claim had no prospect of success [11]. By the Board’s Further Decision, the Board dismissed his appeal and confirmed the Director’s Further Decision.

Application for leave to apply for judicial review

13.  The applicant filed Form 86 on 2 November 2018 for leave to apply for judicial review of the Board’s Further Decision.

14.  In his affirmation in support of his application, he said that the Board had failed to consider the realities in India and that it had just taken into account the official data which was not correct.

DISCUSSION

15.  The applicant appeared before me. He confirmed that he was treated fairly when he appeared before the immigration officer and the Adjudicator of the Board. The duty lawyer had explained the Director’s Decision to him and the interpreter of the Board had explained the Board’s Decisions to him. He had no comments on the Board’s findings.

16.  In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them.  The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

17.  There is nothing to show that the Board had committed any error in its application of the law to his case or in coming to its conclusions on the facts of the case.

18.  The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.

CONCLUSION

19.  I therefore refuse to grant leave to 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