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

HCAL 8/2018

[2019] HKCFI 443

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 8 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 31-year-old national of India who last arrived in Hong Kong on 1 June 2008 with permission to remain as a visitor up to 15 June 2008 when he did not depart and instead overstayed and was arrested by police on 12 July 2008.  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 supporters of rival political party Shiromani Akali Dal Party (“ADP”).  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Village Namol, Tehsil Sunam, District Sangrur, Punjab, India.  After leaving school he followed his family’s footstep and became a supporter of the political party Indian National Congress (“INC”) putting up posters and distributing leaflets for the party.

3.One day in early 2006 while the applicant was chatting with his friends, some drunk ADP supporters approached them with abusive language, and when the applicant told them to go away, an argument broke out which led to a fight between the two groups during which the applicant was hit by hockey sticks, and before those ADP supporters left they threatened to kill the applicant the next time when they met.

4.Upon discharging from the hospital for treatments, the applicant was warned by his father not to return home as the police were looking for him after those ADP supporters had made a claim against him for starting the fight, and so the applicant took shelter at his friend’s place in Ludhiana City where he stayed for several days before returning home.

5.However, soon after his return to his home village when those ADP supporters appeared again to threaten to kill him, and so the applicant fled to his sister’s home in Village Khokhar, and from there he took a bus for New Delhi where he stayed for a week, but when he heard that those ADP supporters were looking for him everywhere, he then fled to another friend’s place in Kolkata where he stayed for more than two years during which he was able to travel with his friend to Thailand, Hong Kong and China on many occasions without any problem with the police or any personal encounters with those ADP people other than some threatening phone calls from them, but when he heard from his parents that the ADP people were still looking for him, and when he was told by some of his fellow countrymen that he could seek protection in Hong Kong, he therefore overstayed in his last trip here and raised his non-refoulement claim, for which he later completed a Non-refoulement Claim Form on 24 August 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.By a Notice of Decision dated 31 October 2016 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 his absolute or non-derogable rights under the Hong Kong Bill of Rights (“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”).

7.In his decision the Director took into account all the relevant circumstances of the applicant’s claim and found no substantial grounds for believing that his perceived risk of harm from those ADP people is real or foreseeable upon his return to India due to the low intensity and frequency of past ill-treatment from them, that he was not specifically targeted by them due to his low position in his party, that after all these years that it is doubtful that they would still have any adverse interest in him, that he was not wanted by the police as he had been able to make numerous trips out of India in the past without any problem, that in the absence of official involvement that state or police protection would be available to him 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 Mumbai, New Delhi or Kolkata where he had previously stayed for more than two years without incidents and where it would be difficult if not impossible for those ADP people to locate him.

8.On 14 November 2016 the applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 3 October 2017 before the Board when he stated he had nothing further to add or elaborate what he had already described before in his written application, and declined to clarify any questions from the adjudicator for the Board regarding his claim.  On 29 December 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board found the applicant’s account of his past experience in India vague, lacking details and in the critical matters of his claim highly speculative, and concluded that his claim was not credible, that he was not targeted for harm by the ADP people or by the police, that he had fabricated aspects of his claim and exaggerated others for the purpose of bolstering his claim for protection, and that in the event that he continued to fear harm as he claimed from the ADP people that he has a number of options open to him to relocate to some other part of India including relocation to Kolkata where he had previously moved to without harm or some other large cities where it would not be unduly harsh for him to live and work without any fear of being located by those ADP people.

10.On 2 January 2018 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 either in his Form or his supporting affirmation of the same date in which he merely stated that he wanted to judicial review those decisions in rejecting his non-refoulement claim.

11.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim by the court, 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.

12.In the present case, as held in Re Moshsin Ali [2018] HKCA 549, the decision of the Director is no longer susceptible to judicial review once an appeal to the Board had been pursued and that the Director’s decision has been superseded by the Board’s decision, and it is therefore not open to the applicant to challenge the Director’s decision by way of judicial review.

13.As for the Board’s decision, as the applicant declined to give evidence to clarify or elaborate his claim before the Board which proceeded to reject his claim for the careful and thorough analysis and reasoning set out in paragraphs 56 – 67 of its decision, of which it was entitled to do on the basis of the evidence and information available before it, and in the absence of any legal error or procedural unfairness in its decision being identified by the applicant, I do not see any prospect of success in his intended challenge. 

14.Furthermore, 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 India, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

15.In the premises and having considered the decision of the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in it, nor any failure on its part to apply high standards of fairness in its consideration and assessment of the applicant’s claim.

16.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 21^st day of June 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