Harpal Singh v. The Adjudicator of the Non-refoulement Claims Petition Office Appointed To Determine the Applicant’s Petition and Another

HCAL 530/2018

[2019] HKCFI 1041

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 530 of 2018

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 35-year-old national of India who arrived in Hong Kong on 28 August 2013 with permission to remain as a visitor up to 11 September 2013 when he did not depart and instead overstayed and was arrested by police on 15 May 2014.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his uncle over a land dispute.  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Panjgrain Kalan, Faridkot, Punjab, India.  After leaving school he worked in his grandfather’s farmland in his home village before spending several years in United Arab Emirates working as a carpenter.

3.In 2009 shortly before his grandfather passed away, his grandfather transferred his farmland to the applicant being the eldest grandson, and on which the applicant would grow rice and wheat, but the land was coveted by his uncle who lived in the same village and was the president of the local truck union and a member of the political party Shiromani Akali Dal (“SAD”).

4.One day in September 2009 his uncle approached the applicant and offered to buy his farmland, but to which the applicant refused.

5.Sometimes in October 2009 his uncle with his son again approached the applicant offering to purchase his farmland, and when the applicant refused, his uncle became angry and threatened that he would get the land one way or the other even if he had to kill the applicant before storming away with his son.

6.After the incident the applicant reported to the police of his uncle’s threats, but after some initial investigation the police did not follow up with any further action.

7.One evening in October 2009 his uncle together with another man came to the applicant with his offer whilst he was working in the farmland, and when the applicant still refused, his uncle and his friend started to hit him with a wooden stick, but the applicant managed to flee from the scene to hide in a friend’s place in the village.

8.On the following day the applicant reported the assault to the police, but when they heard that it involved his uncle, they just told him to settle their dispute within their family.

9.In order to avoid further confrontation with his uncle, the applicant took up a job as a driver in Ahmedabad, Gujarat in November 2009 for the next three years without any further incidents other than some angry phone calls from his uncle, until one day in November 2012 when his uncle appeared with two men at the applicant’s place of work and raised his offer again, and when the applicant still refused to sell his land, his uncle and his friend started to slap and punch him until they were stopped by other workers.

10.After the incident the applicant moved to Kandla where he stayed for several months without further encounter with his uncle until one day in mid-2013 when he heard that his uncle was looking for him in Kandla, he decided that it was no longer safe to remain in India, and so on 27 August 2013 he departed for Hong Kong where he overstayed and after his arrest by the police, he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 12 November 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

11.By a Notice of Decision dated 26 November 2015 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 assessed the level of risk of harm from his uncle to the applicant upon his return to India as low due to the low intensity and frequency of past ill-treatment from his uncle, that his uncle merely wanted to buy his farmland with no real intention to seriously harm or kill him, that their dispute was a private family matter without any 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 his uncle to locate him.

13.By a Notice of Further Decision dated 23 June 2017 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, the notice of which was filed on 8 December 2015, and for which he attended an oral hearing on 8 March 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 20 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 and discrepancies in the applicant’s assertions of facts given in his NCF and his evidence at the appeal hearing that called into question his general credibility, that most of his evidence about events occurred in India were based on hearsay and speculation unsupported by other credible evidence, and that in the absence of any documentary evidence that it did not accept that he is the registered owner of the disputed land or that he had been threatened or assaulted by his uncle over any land dispute, and that it was satisfied that the applicant had invented the whole of the factual basis of his claim and concluded that his claim for non-refoulement protection failed on all applicable grounds. 

16.On 29 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 put forward the following grounds for his intended challenge:

(1) that the Director and the adjudicator reached their decisions wrongly in assessing his non-refoulement claim;

(2) that their decisions were not reasonable or fair as required by the Wednesbury test;

(3) that they failed to take into account that right to life must be protected from extra-judicial killings which he may face if deported to India; and

(4) that the adjudicator failed to give him sufficient time and opportunity to arrange relevant evidence for his non-refoulement claim as well as his appeal.  

17.These are however all just broad and vague assertions of the applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case, or how the Director or the adjudicator had erred in their decision, or in what way were their decisions unfair or unreasonable, or what relevancy were extra-judicial killings to his claim, or how did the adjudicator failed to give him sufficient time and opportunity to produce his evidence in support of his claim or appeal.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant.  Even now more than one year after the Board’s decision that the applicant still did not produce any further evidence in support of his claim which he complained of not being given sufficient time or opportunity to do so by the Board.  As such I fail to see how any of his proposed grounds can be considered as reasonably arguable for his intended challenge.

18.As has been repeatedly emphasized by the Court of Appeal, 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.

19.In the applicant’s case, the Board rejected his claim on its adverse findings on his credibility for the thorough and detailed analysis and reasoning set out in §§63 – 76 of its decision after having had the benefit of hearing him in evidence and in his answers to questions raised in respect of his claim, and in the absence of any legal error or procedural unfairness being clearly and properly identified by the applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

20.Furthermore, the fact is that it has been established by the Director in his 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, a decision subsequently also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

21.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.

22.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 2^nd day of October 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