Gurpreet Singh v. Torture Claims Appeal Board

HCAL 239/2017

[2019] HKCFI 2368

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 239 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 29-year-old national of India who entered Hong Kong illegally on 9 March 2012 and was arrested by police on 20 October 2012.  After he was referred to the Immigration Department for investigation, he raised a torture 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”) and/or by the police over a false claim against him, and when his torture claim was rejected, he then raised a non-refoulement claim on the same basis. He has since been released on recognizance pending the determination of his claim. 

2.The Applicant was born and raised in Tarn Taran, Punjab, India to a family of supporters of the political party Indian National Congress (“INC”).  After leaving school he also became a supporter regularly attending their meetings and rallies.

3.One day in early February 2012 during the election in Punjab, when the Applicant together with some of his fellow INC supporters confronted a group of SAD supporters over their attempts to bribe voters, a fight broke out between the two groups during which the Applicant was assaulted with wooden sticks but managed to escape without serious injuries and fled to Delhi, but when he heard that a SAD supporter had died in that fight and that the SAD people had subsequently come to his home looking for him as they suspected that he was responsible for the death of their supporter, and that they had made a false claim against him to the police, the Applicant decided to leave India for his own safety, which he did on 11 February 2012 when he flew to Hong Kong but was refused entry and was repatriated back to India.

4.On 7 March 2013 the Applicant again left India but this time he flew first to China, and from there he sneaked into Hong Kong on 9 March 2012, and after he was arrested by police and referred to the Immigration Department for investigation, he raised a torture claim and after it was rejected he then lodged a non-refoulement claim for which he completed a Supplementary Claim Form on 23 August 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 30 November 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 his absolute and 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”).

6.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 claimed risk of harm from the SAD people or the police is likely to materialize upon his return to India due to the absence or low intensity and frequency of past ill-treatment from them, that there is no evidence that he had been specifically targeted by the SAD people, or that he was wanted by the police given that he had been able to leave India twice without any problems,that in the absence of any official involvement that state 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 young man to move to other area in India away from his home district such as Dehradun in Uttarakhand State of Punjab where it would be difficult if not impossible for those SAD people to locate him.

7.On 12 December 2016 the Applicant filed an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 27 March 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 11 May 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board accepted that the Applicant did join the INC and participated in the party’s activities, but did not believe that he was of any adverse interest to SAD supporters or that he came to Hong Kong out of his claimed fear of risk of harm from either the SAD people or the police, that INC is now the ruling party in coalition in India that state protection would be available to him if needed, and concluded that his non-refoulement claim failed on all applicable grounds.

9.On 25 May 2017 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward various grounds for his intended challenge which can be summarized as follows:

(1) failure to give him any chance to submit additional facts for his claim under BOR 2 risk;

(2) failure to properly realize and appreciate the current situation and danger that he would face in India;

(3) wrongful reliance on COI to determine the real situations in India in assessing his claim of risk of harm that he would face in India;

(4) wrongfully ignoring the overwhelming violence towards the minorities in India in the assessment of his claim;

(5) wrongfully adopting a biased and formulistic approach in assessing the danger that he would face and in rejecting his claim; and

(6) that his enemies are still looking for him and that his family has been under threats from them.    

10.His complaint under Ground (1) of not being given any chance to submit additional facts for his claim under BOR 2 risk is clearly factually incorrect and has no basis at all, as it is clear from the Director’s decision that his claim under BOR 2 risk was considered together with his other claims when he was then represented by DLS and when the Director correctly found that his case based on his alleged facts simply did not engage BOR 2 risk (see [27] – [29] of the Director’s decision), while at his oral hearing before the Board when he was invited to provide any new or additional information relevant to his claim, he responded that there was nothing to add or to vary those claims already submitted by him (see [7] of the Board’s decision).  In the circumstances I do not find any basis or merit in this complaint of the Applicant.

11.As for the remaining grounds, they are all just some broad and vague assertions of the Applicant without any particulars or specifics or elaborations as to how they applied to the Board’s decision, or in what way were they relevant to his case giving the findings of facts by both the Director and the Board as to the nature of his claim, while those COI relied on and referred to by both the Director and the Board in their decisions clearly and correctly show the current political situations in India as far as INC and SAD are concerned or relevant to the Applicant’s claim, whereas his allegations of threats made against his family are unsupported by any reliable evidence, nor were they made either before the Director or the Board, or has any application for their admission been made in the proceedings now before me.  As such I do not see any reason why they should now be allowed to do so, nor do I find any basis or merit in any of these grounds of the Applicant,or that they are reasonably arguable in his intended challenge.

12.As has been repeatedly emphasized by the Court of Appeal, 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 role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those 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; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Re Litoun Mounsy [2018] HKCA 537.

13.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 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.

14.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.

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 13^th day of November 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