Balbir Singh v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office and Another

HCAL 416/2018

[2019] HKCFI 172

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 416 of 2018

BETWEEN

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 the Applicant in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The applicant is a 38-year-old national of India who arrived in Hong Kong on 7 March 2011 but when he was refused permission to land he lodged a torture claim with the Immigration Department on the basis that if he returned to India he would be harmed or killed by a senior member of the political party Akali Dal Party (“SAD”) over a false claim that he had attempted to rape his daughter, and by members of political party Congress Party for switching his support to a rival party.  He has since been released on recognizance pending the determination of his claim. 

2.The applicant was born and raised in Village Almawala, District Moga, Punjab, India.  After leaving school he worked in various jobs including as a driver and became a supporter of the Congress Party participating in their rallies and activities putting up posters and distributing leaflets.

3.In 2004 he started working as a driver for DS, a senior member of SAD and an influential landowner in Moga, mainly to drive his daughter SK to and from school.  One day in December 2006 when he drove to the school as usual to pick up SK, he saw her behaving intimately with a young man at the carpark whom he thought was her boyfriend, but as he knew such behavior would not be acceptable to her family as SK was still at school and that it was against the traditional value in India, he therefore told SK that he would inform her father of what he saw when he escorted her home.

4.However, as soon as they arrived at her home, SK rushed inside to her father and falsely accused the applicant of trying to rape her in the car.  As a result DS became furious and instead of hearing the applicant’s explanation, he ordered his body guards to beat him by punching and kicking him all over his body, but somehow the applicant managed to escape from the scene and took shelter at a friend’s place in neighbouring Bughipura for several days before returning home.

5.A few days upon his return to his home village, the applicant was arrested by the police who brought him to the Mehna Police Station where he was accused of the murder of SK, and when he refused to make any confession, he was then detained and tortured in all sorts of ways including cutting with knives, water boarding and electric shocks, and still he refused to confess.  Then one day in February 2007 when he saw DS talking and drinking with some of the policemen in the station and heard their discussion about taking him to somewhere to kill him.

6.The applicant was then taken from the police station and was driven away in a vehicle with several policemen, and along the way to Bughipura the vehicle crashed into a tree and everyone was injured but the applicant managed to escape and fled to his friend’s place in Bughipura, and with his friend’s help he travelled to Bombay where he hid in another friend’s place, but when he heard that the police were still looking for him everywhere, he decided to leave India for his own safety, which he did on 17 December 2008 when he flew to Hong Kong with permission to remain as a visitor for 14 days,

7.During his stay in Hong Kong he contacted JA a senior member of the Congress Party for assistance as to his problems and was told that Congress Party would negotiate with SAD to resolve the matter. Whilst waiting for the result the applicant overstayed in Hong Kong and was arrested by police on 7 March 2009, and when he was referred to the Immigration Department for investigation he raised a torture claim which he later withdrew on 19 November 2009 upon believing that JA would be able to reach a settlement for him with SAD.  On 8 January 2010 he was repatriated to India.

8.However, upon returning to India the applicant realized that JA had not been able to achieve any settlement for him with DS, and therefore went into hiding until the chief of the Maan Dal Party helped him to reach a settlement with DS to resolve their dispute and that the accusation that he had murdered SK would be withdrawn.  Grateful for the assistance from Maan Dal Party the applicant therefore switched his support for them and started participating in their activities.

9.Having heard of his support for the Maan Dal Party, members of the Congress Party demanded the applicant to return to their party and threatened to harm or kill him if he refused to do so. One day in February 2011 while he was waiting for the bus he was attacked by several unknown men with knives and punches that his right arm was cut and his body covered with bruises.

10.After he managed to flee home, the applicant suspected that SAD was behind the attack and did not make any report to the police as SAD was then the ruling party, but as he became fearful for his life and decided that it was not safe to remain in India, and with the assistance of his friend he departed on 7 March 2011 for Hong Kong again, and when he was refused permission to land, he lodged a non-refoulement claim, for which he later completed a Supplementary Claim Form and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). 

11.By a Notice of Decision dated 8 January 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim on all then 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 under Article 3 of the Hong Kong Bill of Rights (“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”).

12.In his decision the Director took into account all the relevant circumstances of the applicant’s claim and found no substantial grounds to believe that his perceived fear of harm from DS and his SAD people or the Congress Party is real and foreseeable upon his return to India, that in the absence of any official involvement that state protection would be available to the applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in India with a large population of 1.2 billion people spread across a vast territory of more than 2.9 million square kilometers that it would not be unduly harsh for the applicant as an able-bodied adult with work experience to move to other area away from his home district in large cities such as Delhi, Mumbai, Kolkata, Chennai or Bangalore where it would be difficult if not impossible for his perceived enemies to locate him.

13.By a Notice of Further Decision dated 22 May 2017 the Director again rejected the applicant’s claim after receiving and considering additional facts submitted by DLS on his behalf relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

14.By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, which appeal he filed on 22 January 2016, and for which he attended an oral hearing on 11 August 2011 before the Board represented by his lawyer from DLS during which he gave evidence and answered questions put to him by the adjudicator for the Board and with submission made on his behalf by his lawyer.  On 28 February 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

15.In its decision the Board found major inconsistencies, discrepancies and contradictions in the various statements given by the applicant as to the account of his claim which rendered it illogical and incredible, that he was only a low-tier supporter of Congress Party that it is unlikely that they would bother to locate him after all these years, while reliable COI show that SAD is now just a minor party in India with only four seats restricted to the Punjab State that it is unlikely that it would still have the influence or ability to be involved in the private dispute between the applicant and DS, and that the applicant can always relocate to other parts of India in many large cities that it would be difficult if not impossible for SAD or DS and his associates to locate him.

16.On 14 March 2018 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  lack of legal representation or language assistance in his present application for judicial review; and

(2)  failure on the part of the Director to give proper explanation for rejecting his claim under BOR 2 risk and for relying on improper or irrelevant COI on India in the assessment of his claim under BOR 2 risk.

17.His first complaint is clearly misplaced as it cannot be considered as a ground or reason for challenging the decisions of the Director or the Board.  Furthermore,  the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

18.The applicant already had the benefit of legal representation in presenting his case not just to the Director but also in his appeal to the Board, and clearly also had legal assistance in the drafting and preparing of his supporting affirmation for his application now before me, whilst at the hearing he did not put forward any argument with regard to the lack of legal representation when in fact he just stated that he had nothing to say when invited to elaborate on this ground, or for that matter any of other grounds for his application.  As such any lack of legal representation in his present application simply cannot be relied on or used as an excuse for his failure to properly identify any error in those decisions.

19.As for ground (2) it is plainly wrong for the applicant to claim that no explanation was given by the Director in rejecting his claim under BOR 2 risk, which the Director clearly did in paragraphs 7 – 13 of his Notice of Further Decision explaining the reasons for rejecting the applicant’s claim under BOR 2 risk.  There is again no basis for this complaint of the applicant.

20.As for his complaint of the Director’s reliance of improper or irrelevant COI in its assessment of his claim under BOR 2 risk, the applicant has failed to provide any particulars or specifics in support of this complaint, and upon examination of those COI referred to in the decisions of the Director as well as those considered by the Board, I do not find any basis in this complaint of the applicant either.

21.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board, where the evaluation of risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Re Litoun Mounsy [2018] HKCA 537.

22.Furthermore, the fact that it has been established by both the Director and the Board in their decisions that the risk of harm in the applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins [2013] 1 HKC 526.

23.In the premises and having proceeded to consider the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

24.For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.

Dated the 8^th day of March 2019.

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