Sukhjinder Singh v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 606/2018

[2019] HKCFI 401

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 606 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 34-year-old national of India who arrived in Hong Kong on 15 April 2015 and when he was refused permission to land by the Immigration Department, he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by supporters of rival political party Shiromani Akali Dal (“SAD”).  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Village Khakh, Amritsar district, Punjab, India.  After leaving school he worked in his family’s business selling dairy products in his home village, and got married with a son.

3.As his father was a supporter and member of the political party Indian National Congress Party (“INC”), the applicant also became a supporter in 2005 and helped as a volunteer putting up posters and banners for the party during elections when he started to experience threats and harassments from supporters of rival SAD.

4.One day in January 2008 while his father was participating with his fellow members of INC in an election campaign in Rajinder Nagar, they were attacked by a group of SAD supporters and were subsequently arrested by police, and it was only on the following day that his father was released.  Fearful of further attack by the SAD supporters, the applicant’s father moved his family to take shelter at his sister’s place in Bareilly for two months before returning to their home in Amritsar.

5.In the following year in May 2009 during the general election for Members of the Parliament, some SAD supporters came to the applicant’s home to demand that he and his father cast their votes for their SAD candidates, and when they refused, they just left.

6.However, on the polling day when the applicant and his father were on their way to the polling station to cast their votes, they were confronted by a group of SAD supporters who proceeded to punch and kick them until they were restrained by other passers-by, and on the following day when they reported the attack to the police, they were told that these things do happen during elections and were turned away.

7.In October 2010 the applicant’s family moved to live in Tarn Taran where he continued to assist his father in his dairy business without further incidents until the next MP election in April 2014 when some SAD supporters came to his home to demand that he and his father should vote for their candidates, and when they refused, the men then left.

8.A few weeks later while the applicant was with a fellow INC supporter putting up posters for their candidates, they were attacked by several SAD supporters with hockey sticks that the applicant sustained bruises and injuries all over his body and had to be taken to the hospital by ambulance for medical treatments where he was hospitalized for three days.

9.In February 2015 again some SAD supporters approached the applicant’s family for their votes for their candidates in the forthcoming MC general election, and when the applicant’s father proposed to split their votes between the SAD and INC candidates, the men then left.  Two months later while the applicant was with his wife shopping in the market, he saw a group of men approaching him with choppers, he started to run away and although he was hit in his right heel, he managed to escape and took shelter in a police station.

10.Upon returning home on the following day, the applicant was advised by his family that it would not be safe for him to remain in Tarn Taran, and so he went to New Delhi to stay with a friend, and when he felt he could not rely on his friend for long, he decided to leave India which he did on 14 April 2015 when he departed for Hong Kong, and when he was refused permission to land, he raised his non-refoulement claim, for which he later completed a Non-refoulement Cliam Form on 19 May 2015 and attended screening interview before the Immigration Department with legal representation from Duty Lawyer Services.

11.By a Notice of Decision dated 13 July 2015 the Director of Immigration (“the 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 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 assessed the level of risk of harm from those SAD supporters upon his return to India as low as they merely tried to influence his voting decisions during elections, that his father and family have remained unharmed all these years since he left India show that he or his family was not specifically targeted by the SAD supporters, that in the absence of official involvement that state or police 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 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 to other part of India away from his home district in large cities such as New Delhi where he had stayed before without incidents and where it would be difficult if not impossible for those SAD supporters to locate him.

13.By a Notice of Further Decision dated 14 December 2016 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be 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, and for which he attended an oral hearing on 9 February 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 1 March 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

15.In its decision the Board found inconsistencies in the applicant’s account of events in India that undermined the credibility of his claim, that no further threats have since been made to the applicant’s father or family shows that the applicant was not specifically targeted by SAD and that after all these years that it is doubtful that they would still have any adverse interest in him, and that state protection and reasonable internal relocation alternatives are available to the applicant in other part of India that his claim failed on all applicable grounds. 

16.On 10 April 2018 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but neither in it nor in his supporting affirmation of the same date did he put forward any ground for his intended challenge, and at the hearing of his application he merely stated that he was advised by his lawyer to just go ahead to make his application without any proper grounds and that problems at home have still not been resolved, which by itself cannot be accepted as a valid ground for his intended application.

17.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim, as 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 the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them 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 clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: 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. 

18.The fact that it has been established by both the Director and the Board in their respective decision 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, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

19.In the premises and having considered 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.

20.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 4^th day of April 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