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

HCAL 513/2017

[2019] HKCFI 847

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 513 of 2017

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 entered Hong Kong illegally on 31 August 2015 and surrendered to the Immigration Department on 1 September 2015 and raised a non-refoulement claim for protection on the basis that if he returned to India he would be harmed or killed by his uncle over a land dispute and/or 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 in Barnala, Punjab, India and raised in Heera, Bathinda, Punjab. After leaving school he worked in his father’s poultry farm in Bathinda, got married with a family, and joined the political party Indian National Congress (“INC”) regularly attended their meetings and rallies.

3.One day in early 2014 the applicant was approached by a SAD member to join his party but he refused.  Sometimes later in April 2014 while he was passing the village market,he was attacked by several masked men with sticks and clubs that he lost consciousness.  Afterwards he was taken to a local clinic for medical treatments.  As he had no enemies in the village he suspected that his assailants were SAD supporters who assaulted him for his refusal to join their party, but he did not report the matter to the police as he believed that they were under SAD’s influence.

4.One day in May 2014 while he was out in town he received a telephone call from his family that there were strangers carrying weapons outside his home.  He suspected they were the same men who attacked him before, and so he took shelter at his grandparents’ place in Barnala for several weeks, but as he still felt that his life was in danger, he decided to leave India on 27 June 2014 for Hong Kong where he overstayed, and upon his arrest by the police he then raised a non-refoulement claim with the Immigration Department, but which he subsequently withdrew in January 2015 and was repatriated to India in March 2015.

5.Upon returning home in Bathinda, he heard about a dispute between his father and his uncle over their family land, and one day in May 2015 his uncle confronted him and his father over the dispute during which he was slapped on the face by his uncle, and when he pushed his uncle back, his uncle threatened to evict him and his family from the land.

6.After the incident the applicant and his father went to the local police to report about his uncle’s threats, but instead of investigating his uncle the police detained both of them for two days until his family paid a bribe that they were released.  The applicant suspected that his uncle was involved in their arrest.

7.One day in June 2015 while he was on his way to work, the applicant was attacked by some unknown men with hockey sticks and baseball bats that he fainted and was subsequently taken to the local clinic for treatments.  He suspected that those men were either SAD people or sent by his uncle to attack him, but did not report the matter to the police as he did not want to be detained again.

8.Fearing for his life the applicant decided to leave India again, which he did on 25 August 2015 when he departed for China, and from there he sneaked into Hong Kong and again raised a non-refoulement claim, for which he later completed a Non-refoulement Claim Form on 26 January 2016 and attended screening interview before the Immigration Department with legal representation form the Duty Lawyer Service.

9.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 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”).

10.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 or the SAD people to the applicant upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that there is no reliable evidence that those unknown men who attacked him were from SAD or sent by his uncle, that it is unlikely that the SAD people would have such interest in someone like him with no important position in his party, that his dispute with his uncle 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 Delhi where it would be difficult if not impossible for his perceived enemies to locate him.

11.By a Notice of Further Decision dated 22 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”).

12.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 22 June 2016, and for which he attended an oral hearing on 14 June 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 10 August 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

13.In its decision the Board having heard, observed and questioned the applicant found nothing that he said or presented in evidence can be given any credence whatsoever, that without doubt that he is not a witness of truth, that he had presented a leant account rather than one which described events that he had genuinely experienced and that his account was singularly unconvincing, and concluded that he has not established any of the facts he had asserted and that his claim failed on all applicable grounds.  

14.On 15 August 2017 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date in which he merely repeated his claim that his life would still be in danger back home and pleaded that he be allowed to stay in Hong Kong on humanitarian grounds.

15.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 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.

16.In the applicant’s case, the Board rejected his claim based on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in §§28 – 46 of its decision after having had the benefit of hearing him in evidence and in his answers to questions raised of his claim at his appeal hearing, and in the absence of any legal error or procedural unfairness being clearly and properly shown by the applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

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

18.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.

19.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 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