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Gurvinder Singh v Torture Claims Appeal Board [Decision On Leave Application]

Judgment Cited authorities 5 Cited in Precedent Map Related
Vincent
Judgment Date04 November 2021
Neutral Citation[2021] HKCFI 3289
Judgement NumberHCAL1425/2020
Subject MatterConstitutional and Administrative Law Proceedings
CourtCourt of First Instance (Hong Kong)
HCAL1425/2020 GURVINDER SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 1425/2020

[2021] HKCFI 3289

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1425 of 2020

BETWEEN

Gurvinder Singh Applicant
and
Torture Claims Appeal Board Putative Respondent
and
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:

consideration of the documents only; or
consideration of the documents and oral submissions by (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1. The Applicant is a 30-year-old national of India who entered Hong Kong illegally in early August 2015 and surrendered to the Immigration Department on 5 August 2015 when he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his step-mother and her brother over a land dispute in his home village. He was subsequently released on recognizance pending the determination of his claim.

2. The Applicant was born and raised in Village Chhoti, District Sri Ganganagar, State Rajasthan, India. After leaving school he worked as a farmer in his farmland given to him by his father.

3. After the passing of his mother, his father married his second wife, and in 2012 she started to demand that the Applicant should give his farmland to her brother or her son, and when the Applicant refused, she tried to poison him while her brother threatened to kill him, and after one incident in 2014 when he was attacked by some men sent by his step-mother’s brother with hockey sticks, the Applicant became fearful for his life and so on 22 July 2015 he departed India for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 5 September 2016 with legal representation from the Duty Lawyer Service (“DLS”) but failed to attend any screening interviews before an immigration officer due to alleged medical reason.

4. By a Notice of Decision dated 31 October 2016 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

5. In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his step-mother and her brother upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that it was a private family dispute over land without any official...

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