Harvinder Singh v. Director of Immigration and Another

HCAL 191/2017
[2018] HKCFI 197

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 191 of 2017

BETWEEN

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 Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The applicant is a 36-year old Indian male who entered Hong Kong on 13 June 2014 as a visitor with permission to remain until 17 June 2014.  He failed to leave Hong Kong thereafter and overstayed until 22 September 2014 when he surrendered to the Immigration Department.  On 29 October 2014 he lodged his claim for non-refoulement protection on the ground that he would be harmed or killed by his granduncle and his son over certain land dispute if he were to return to India.

2.By a Notice of Decision dated 19 January 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim on the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the Hong Kong Bill of Rights (“HKBOR”) Ordinance, Cap 383 (“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”).

3.On 1 February 2016 the applicant lodged his appeal/petition to the Torture Claims Appeal Board (“the Board”) against the Director’s decision.  An oral hearing was held before the Board during which the applicant gave evidence and answered questions put to him.  On 23 December 2016 the Board dismissed his appeal and confirmed the Director’s decision.

4.By a letter dated 15 February 2017 the Director invited the applicant to submit additional facts relevant to his claim for non-refoulement on any other absolute and non-derogable rights including right to life under particularly Article 2 of HKBOR (“BOR 2 Risk”), and having not received any from the applicant the Director proceeded to assess his claim under BOR 2 Risk and by a Notice of Further Decision dated 7 March 2017 again rejected his claim.

5.On 13 March 2017 the applicant filed his appeal to the Board against the further decision of the Director.  That appeal was determined by the Board without a hearing and was dismissed on 25 April 2017.

6.On 9 May 2017 the applicant filed his Form 86 for leave to apply for judicial review of those decisions of both the Director and the Board which is the matter now before me.  In support of his application the applicant filed on the same date his affirmation exhibiting thereto a five-page statement in which he set out his grounds of complaints, but before considering the same it is relevant to first summarize the background of his case based on the details set out in the decisions of both the Director and the Board as follows.  

7.The applicant was born in Village Taggar Kallan, District Hoshiarpur, Punjab, India.  After finishing formal education he worked as a farmer in his farmland jointly owned with his father in his home village where his parents still live.  He is married with a son who is now living with his wife in her parents’ home in a different district in Punjab.

8.Since about 2013 his granduncle Harbhajan Singh (“HS”) who was affiliated with some rich people in the same village had been trying to force him to sign away to him his farmland of 2,000 square metres said to be worth about US$30,000 by approaching him with other men on several occasions with threats against him and his family, during one of which he was pushed and punched on the face before they were stopped by other passers-by, and when he still refused to yield to the demand, he was attacked one day in December 2013 by HS and his son with several other men with wooden sticks and iron bars causing him pain and bruises all over his body.

9.He somehow managed to escape to hide in his father-in-law’s home in District Gurdaspur where he stayed for four months before moving to his maternal uncle’s home in the same district to avoid being located by HS and his people.  He did not report this assault to the police as they did not do anything about his previous complaints to them in respect of the earlier incidents, but he agreed that HS and his men never targeted his father being the joint owner of the farmland, for which he did not know why but sought to explain that in his culture people usually do not harass the elderly.  In any event he was advised by his wife’s family that it would not be safe for him to remain in India and so his father-in-law arranged for him to fly to Hong Kong on 13 June 2014, where he overstayed for three months until 22 September 2014 when he was advised by a fellow countryman to surrender to the police so that he could apply for non-refoulement protection with the Immigration Department, which he did with legal assistance and representation provided by the Duty Lawyers Scheme.

10.In rejecting his claim the Director did apply all the applicable legal principles and consider all the available grounds including a statement written by his village head in Punjabi with English translation at his father’s request after he left India verifying his dispute with HS over the farmland, of which the Director found to be purely a private dispute between the applicant and HS, that the low frequency and intensity of ill-treatment from HS and his people show only a small future risk of harm to the applicant if he were to return to India, that State or police protection would be available to him in the absence of any evidence of HS being involved or connected with the government or the State, and that objective COI support that internal relocation would be available an reasonable for him to live and work safely in other city or district in India away from his home district, as HS is interested only in his land and would not have the desire or the means or ability to find him elsewhere given that India has such a vast territory and with a population of more than 1,250 million, all of which the Director was entitled to find based on the evidence before him.           

11.In the applicant’s appeal to the Board issues were taken particularly with his credibility as to the alleged land dispute when he gave evidence and answered questions put to him by the Board at the oral hearing which the Board found not credible and that he was not a truthful witness about HS threatening only him but not his father, as the Board explained in its detailed analysis of the evidence in the decision including the statement given by the village head which was regarded as hearsay from the applicant’s father and was therefore not accorded much weight in the consideration of the applicant’s evidence over the alleged land dispute.

12.It is noted that in its assessment of the applicant’s credibility the Board did remind itself that the existence of inconsistencies may not necessarily be fatal to a claim as long as the centerpiece of the story stands, and after having found the applicant’s evidence unconvincing on balance of probabilities, the Board did go on to find that even if what he claimed about the dispute were true and that there would be real risk of persecution in his home area, it agreed with the Director that internal relocation would be available and reasonable in the circumstances of the applicant to live and work safely in other districts or cities in India.

13.As noted above the applicant has presented a five-page statement setting out his grounds for leave to apply for judicial review of the decisions of the Director and the Board, and with rigorous examination and anxious scrutiny I can identify essentially only the following:

(a) that he never received the letter from the Immigration Department inviting him to submit additional facts relevant to his non-refoulement claim for protection under BOR 2 Risk and was therefore deprived of the opportunity to do so before his claim was rejected by both the director and the Board; and

(b) that there were procedural unfairness when the decision makers failed to carry out sufficient research and inquiry into COI conditions or to put sufficient weight on information relevant to his case before deciding that internal relocation was available and reasonable for him to return to India. 

14.The letter which the applicant claims to have never received from the Immigration Department was the one dated 15 February 2017 referred to in the Director’s Notice of Further Decision of 7 March 2017, and it is therefore safe to assume that even if indeed the applicant did not receive that letter, and high standard of fairness requires that he be given the benefit of doubt, he would have become aware of his right to submit additional facts no later than when he received the Director’s Further Decision after 7 March 2017 so that after he lodged his second appeal to the Board on 13 March 2017, he would have had almost six weeks to submit whatever additional facts or materials that he thought would assist his case to the Board before his appeal was dismissed on 25 April 2017, and if what he claimed to be additional facts in his statement were true, such as his family being constantly threatened and tortured, his home was burnt, his mother was seriously injured and that his cousin sister died from the torture, all of which would no doubt be regarded by him as most important and crucial to his case, which begs the most obvious question of why did he not disclose them to the Board in his appeals when according to him all of these occurred the year before in his statement and hence in 2016?

15.As a matter of fact, even up to the filing of this application the applicant still failed to produce any evidence, documentary or otherwise, to support these bare allegations of his, notwithstanding the ample time and opportunities for him to do so and no doubt with the assistance of his family back home such as when his father was able to produce the statement from the village head, as the Court of Appeal pointed out in TK v Michael Jenkins CACV 286/2011, 21 November 2012, that within reasonable bounds the torture claimant is expected to conduct his own investigation and obtain information and materials that it requires to prove his case.  As the matter stands I do not think that the applicant has any ground to complain of not having the opportunity to do so.

16.As for his complaint of unfair procedure in the consideration by the Director and the Board of the objective COI in finding that internal relocation is available and reasonable for him to return to live and work safely in India albeit away from his home district, again other than a bare general assertion the applicant has failed to give any details or particulars in support of his argument.  Having rigorously examined and scrutinized those COI before the Director and the Board, I am unable to find any error or unfairness in the process of their assessment.    

17.In conclusion I do not find any ground that shows any error in law or procedural unfairness on the part of the Director or the Board, or any failure on their part to apply a high standard of fairness in their assessment of the applicant’s claim.  I am therefore not satisfied that his intended application for judicial review is reasonably arguable, and accordingly I refuse his leave application.    

Dated the 30^th day of January 2018

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