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

HCAL 1710/2019

[2024] HKCFI 1675

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1710 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 21 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.  The applicant asked for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, he appeared before the Court on 9 May 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 49, is an Indian. He entered Hong Kong illegally on 15 October 2016 and he surrendered to the Immigration Department on 17 October 2016. The applicant made a non-refoulement claim on 5 December 2016. The claim was made on the basis that, if refouled, he would be harmed or even killed by the village head and his sons due to a land dispute.

5.  According to the applicant, his father transferred farmland to the applicant, which was adjacent to that of the village head. The village head was a member of Shiromani Akali Dal, which was the ruling party in the applicant’s locality and was closely associated with the national ruling party of India. Meanwhile, the village head’s sons were gangsters, who were involved in many fights and illegal activities.

6.  One day in February 2016, the village head and his sons came to the applicant’s home and asked him to sell his farmland to them. The applicant refused to sell as they failed to reach an agreement on the price. The village head then became very angry and attacked the applicant with a wooden stick. A few days later, a member of the Legislative Assembly of Punjab and his secretary came and offered to buy his farmland. Again, no agreement could be reached and he left after threatening the applicant that anything could happen to him.

7.  In around March 2016, the village head and his sons came to the applicant’s farmland while he was farming. The village head fired a shot into the air and requested the applicant to sign on some documents selling his farmland to him. Upon the applicant’s refusal, the village head’s sons attacked the applicant with wooden sticks. Eventually, other villagers intervened and they left after death threatening him. The applicant reported the matter to the police on the same day, but they refused to take any action, which the applicant believed was due to the political affiliation of the village head. At the evening on that day, the village head and his sons came to the applicant’s home. Luckily, he managed to escape from the back door before they broke in.

8.  Shortly afterwards, the applicant moved to stay at the home of his paternal aunt as he was scared. One day in May 2016, the applicant encountered the village head and his sons in the parking area of a shopping mall, who then attacked him with iron rods, wooden sticks and hockey sticks. Subsequently, the police also came. They assaulted the applicant with batons and arrested him for fighting in a public place. He was remanded for two days, during which he was hanged on the ceiling and attacked by the police with electric shock. They police also kept beating him and did not provide sufficient food or drinks to him. They even threatened that he should sell his farmland to the village head, failing which he would suffer seriously.

9.  On 26 May 2016, the applicant attended a Court hearing for his charge of fighting in public place. He was released on bail and his father took him to the hospital for treatment of his injury, where he stayed for a week. One day, shortly after the applicant’s discharge from hospital, the village head and 2-3 of his underlings came to his home and attacked him with wooden sticks. They pushed him and coerced him to sell his farmland. In the end, they left after some villagers intervened.

10.  By the end of May 2016, the applicant escaped to New Delhi and stayed with his friend until 16 July 2016. Thereafter, he went to Malaysia and stayed with another friend. As he failed to seek protection in Malaysia, he returned to his hometown in India on 29 July 2016. On 3 September 2016, he first arrived in Hong Kong via Thailand. He returned to his hometown in India on 5 September 2016 after he was denied entry. On 28 September 2016, he left India for China. Eventually, he sneaked into Hong Kong from Shenzhen on 15 October 2016.

11.  The applicant maintained contact with his wife after his arrival in Hong Kong. She told him in late June 2018 that the village head and his sons were still threatening his family and seeking for his whereabouts.

12.  The applicant considered internal relocation not viable because the village head was very powerful and could locate him anywhere within the country through his strong connection. Meanwhile, the applicant did not seek help from the authorities as he believed they were under the influence of the village head.

13.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 27 June 2018 (“the Director’s Decision”).

The Director’s Decision

14.  The Director considered the applicant’s claim in relation to the following risks:

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

b.  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”);

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”).

15.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director had doubts towards the applicant’s claims because (i) he failed to seek protection at his earliest opportunity when he was in other countries; (ii) he stayed in his hometown in India after returning from Malaysia and Hong Kong and (iii) the farmland was still officially under the name of his father, but he suffered no harm from the village head. In any event, the past behaviour of the village head and his sons also indicated that the applicant would not suffer a real risk of harm upon return to India [12]-[13].

16.  Furthermore, the Director found that (i) state protection would be available to him [15]-[16]; (ii) internal relocation would be viable [14], [17]-[20] and (iii) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [21]-[26], Persecution risk [27]-[32] or Torture risk [33]-[36].

The Board’s Decision

17.  The applicant appealed the Director’s Decision to the Board. On 4 October 2018, the Board conducted an oral hearing.

18.  The Board was of the view that the material facts and information provided by the applicant were unreliable. They had doubts on the claimed land dispute and considered it implausible that the village head would only go after him, but not his father for the land. The Board also found it implausible regarding the applicant’s non-reporting of the various assaults to the appropriate authorities and that he was granted bail without any condition. Furthermore, it was implausible that the applicant would choose to stay at his hometown in India after returning from Malaysia and Hong Kong if he really faced such imminent danger. In any event, the applicant’s claim about the infeasibility of internal relocation and state protection contradicted with the country of origin information (“COI”) [42].

19.  Based on such findings, the Board found the applicant dishonest and that he was not a genuine claimant. They were not convinced that the applicant came to Hong Kong because of the claimed threats from the village head and that he suffered the claimed injuries. They were also not convinced that there was a land dispute and that the village head was chasing the applicant all over India in order to harm/kill him [43].

20.  The Board concluded that the applicant’s case failed to meet any of the requirements under Torture risk [30]-[40], [45]-[54], [57]-[58], BOR 2 and BOR 3 risk [59]-[65] or Persecution risk [66]-[74]. Furthermore, state protection and internal relocation were also available to him taking into account the COI [55]-[56], [75]-[78].

21.  The applicant’s appeal was therefore dismissed and the Director’s decision was confirmed.

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

22.  The applicant has filed Form 86 dated 20 June 2019 for leave to apply for judicial review of the Board’s Decision.

23.  In his affirmation in support of his application, the applicant said his life would be in danger if he returns to his country. He did not raise any other specific ground.

DISCUSSION

24.  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).

25.  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 Board was wrong for not believing his evidence.

26.  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.”

27.  For those reason given by the Board above, the Board rejected the applicant’s evidence in support of his claim. The applicant has raised no valid reason to challenge the Board’s Decision. There is simply no reason for this Court to interfere with the Board’s finding of the facts.

28.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

CONCLUSION

29.  I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. 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