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

HCAL 1833/2018

[2020] HKCFI 1534

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1833 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.  This is the applicant’s application for leave to apply for judicial review of the Decision dated 24 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s 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 CACV8/2018, [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 did not attend the hearing on 24 October 2019. I shall therefore proceed to consider his application on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, the Court, on its own motion, amended Form 86 by deleting the Immigration Department and replaced it with the Board as the respondent.

The applicant

4.  The applicant is an Indian national. He had come to Hong Kong illegally on 4 October 2014 and was arrested by the Immigration Department on 4 June 2015. By written representation dated 8 December 2015, he lodged his non-refoulement claim.

5.  He claimed that if refouled, he would be harmed or killed by Labh Singh and his three sons, Kulwant, Goldy and Mela, due to a land dispute.

6.  The relevant incidents took place as set out below.

a.His father had inherited a piece of land from his grandfather. The land was being occupied by Labh and his sons. His father tried to evict them. They belonged to the Akali Dal Party. His father supported the Congress Party. His father took the matter to the District Court and issue summons on Labh.

b.In 2011, shortly after the summons was issued, Kulwant and Mela came to his house. They threatened his father to withdraw the case. His father refused. They attacked his father and him. As a result, his father and he suffered injuries over their bodies. They reported the case to police. The police did some investigation, but they did not tell them the result.

c.After 6 or 7 months, he was told that his father was attacked and injured by Kulwant, Goldy and Mela. He went to see his father in hospital and then to police to report the case. Police refused to take on the case. He was told that police were under pressure from Labh.

d.A few days later, his younger brother was slapped on the face by Goldy, who threatened him that the family would be killed if his father did not withdraw the case.

e.In 2012, his father was again attacked by his cousins with weapons and was hospitalized. It took almost one year for his father to recover. The matter was reported to police. The police told him that they were under pressure from Akali Dal Party.

f.  At the end of 2013, he had a fight with Goldy and Mela. Goldy was hit by Mela by mistake as he dodged Mela’s attack. Mela then hit him with a spiked log. He fell on another spiked log and was unconscious. He woke up and found himself in the hospital. He received 6 stitches to his calf. Later, he was told that a charge was laid against him for injuring Goldy.

g.There was a mediation between the families. Labh’s family demanded 500,000 Indian rupees, but they could only offer 100,000. The mediation failed. He moved to live in other places.

h.In around April 2014, he learned that his cousins were looking for him around and his friends could no longer accommodate him. He went to New Delhi and then arranged to leave India for China.

i.   He received information from his father that there had been another mediation, which failed. The Labh family took away the crops on the land. His father advised him not to return to India. Also, he had some dietary problem himself.

The Director’s Decision

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

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

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 5 December 2016, the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that his alleged risk of being harmed or killed was low [13]; state protection would be available [16] and internal relocation was an option open to him [22]. See paragraphs 15 to 39 of the Director’s Decision.

The Board’s Decision

9.  The applicant appealed to the Board against the Director’s Decision. He attended a hearing before the Adjudicator on 21 February 2018. All parties were legally represented.

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 was of the view that his claim of the risks did not fulfill the requirements of the statutory provisions or the Convention; state protection would be available to him; and internal relocation was an option open to him.  See paragraphs 26-44 of the Board’s Decision.

Application for leave to apply for judicial review

12.  The applicant filed Form 86 dated 4 September 2018 for leave to apply for judicial review of the Board’s Decision.

13.  In his affirmation in support of this application, he did not state that the Board had committed any error in reaching its decision.

DISCUSSION

14.  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.”

15.  The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.

CONCLUSION

16.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the intended 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