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

HCAL 527/2017

[2019] HKCFI 668

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 527 of 2017

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 the Applicant being present / absent 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 40-year-old national of India who arrived in Hong Kong on 1 January 2015 with permission to remain as a visitor up to 8 January 2015 when he did not depart but instead overstayed until he was arrested by police on 20 January 2015.  After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his paternal uncle and his sons over certain land dispute with them.  He has since been released on recognizance pending the determination of his claim. 

2.The applicant was born and raised in Village Malke, District Moga, Punjab, India where his family owned certain farmland on which he and his family did their farming, and which lied adjacent to those of his paternal uncle and his two sons who were politically well connected and influential in the village, and with one of the sons said to be a drug dealer and a gangster.

3.The applicant’s dispute with his uncle and cousins first started in June 2014 when his cousins tried to push the boundary of their farmland over to his which led to a heated argument between them during which his cousins swore at him.  After the applicant made a complaint to the village council, things quieted down for a while but in August 2014 when his cousins again tried to move the boundary of their land over to the applicant’s land, and when the applicant tried to intervene, he was assaulted by them with punches and wooden sticks until they were restrained by other villagers, but before they left the cousins threatened to kill the applicant if he dared to remove the new boundary.

4.After the assault the applicant had to receive medical treatment while his father reported the matter to the local police, but no further action was taken by the police against the uncle or his sons as the applicant suspected that the police were under the influence of his uncle, and so the applicant took shelter at the home of his in-laws in another village for a month without any incidents before returning to his home in September 2014.

5.However, when the applicant found he was constantly being stalked by some strangers in his village, he felt it was no longer safe to remain in India, and so on 1 January 2015 he departed for Hong Kong where he subsequently overstayed and lodged his non-refoulement claim, for which he completed his Non-refoulement Claim Form on 21 April 2016 with legal representation from the Duty Lawyer Service.     

6.By a Notice of Decision dated 14 June 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 section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), 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”).

7.In his decision the Director considered that the behaviors of his uncle and cousins show no real intention to harm or kill the applicant, that their conflict was purely a private property dispute with no official involvement that state or police protection would be available to the applicant if resorted to or which could be properly resolved by legal process, and that 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 3.2 million square kilometers that it would not be unduly harsh for the applicant as an able-bodied adult with work experience to move safely to other areas away from his home district such as Delhi where it would be difficult if not impossible for his uncle or cousins to locate him.    

8.By a Notice of Further Decision dated 27 February 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation for him to submit additional facts 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”).

9.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 23 June 2016, and for which he attended an oral hearing on 19 July 2017 before the Board.  On 24 July 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.In its decision the Board expressed serious doubts over the applicant’s claim of threats from his uncle and cousins and agreed with the Director that it was a private dispute without any official involvement that would not in the circumstances of his case put the applicant’s claim within any of the applicable grounds for non-refoulement protection in Hong Kong.    

11.On 18 August 2017 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board but no ground for seeking relief was given in the Form, and in his supporting affirmation of the same date he simply deposed that:

“ I am not satisfy [sic] with the Immigration Department and the Appeal Board for the Decision of Torture Claim. I would like to apply for Judicial Review. I am pleading to you to consider my request because my life is in severe danger. If I go back I will lose my life due to the threat I am facing in my country.”

12.The applicant did not request for an oral hearing for his application.  Accordingly no hearing was held, and up to now no ground has been put forward by him for his intended challenge.

13.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim, that 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 roles as primary decision makers.  In the absence of any legal error identified by the applicant, judicial review is not an avenue for revisiting the 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; and Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400.     

14.As already noted the applicant in the present case has not put forward any ground in support of his application, nor has he identified any legal errors in either of the decisions of the Director and the Board.  Nevertheless, having proceeded to consider those decisions 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.

15.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 15^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