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

HCAL 164/2019

[2019] HKCFI 2954

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 164 of 2019

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 47-year-old national of India who arrived in Hong Kong on 21 May 2015 with permission to remain as a visitor up to 5 June 2015 when he did not depart and instead overstayed and subsequently surrendered to the Immigration Department on 9 June 2015 when he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by certain local businessmen over certain business dispute.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Devidasspura, Pipli Town, Thanesar,Kurukshetra, India.  After leaving school he ran a building material business in his home district to earn his living.

3.In 2003 the Applicant wanted to open a liquor store in Pipli Town and applied for a liquor license which was auctioned by the government on a yearly basis, and so on 22 March 2003 he attended the local auction for the license when Binder, a local businessman with political connections together and his associates were also competing in their bidding for the license, during which he threatened the Applicant to stop competing with them, and when the Applicant refused, Binder and his associates started to abuse and threaten him that the auction was eventually terminated.

4.After the auction when the Applicant was driving away in his car, he was stopped by Binder and his associates who proceeded to strike his car with wooden sticks and other objects and caused damage to his car but the Applicant managed to escape from the scene and reported the matter to the police.

5.During the next several months whenever the Applicant ran into Binder, he was threatened by him that if he did not withdraw his complaint to the police, he would be killed,but when the Applicant found that the police had failed to follow up with their investigation about his report, he started to make written complaints against the police.

6.One day on 17 July 2003 a police inspector came to the Applicant’s home with Binder and his associates and suggested to the Applicant that he should compromise their dispute and suggested for them to carry on further discussions in the local police depot.  However, upon arriving there the Applicant was beaten by the police inspector and his subordinates with batons and other objects and was detained for the next several days without food or water until his family paid a bribe for his release.

7.Upon his release the Applicant filed a complaint to the city police about his ill-treatment at the local police depot, and when he was unable to obtain a satisfactory solution,he filed a case with the Kurukshetra Magistracy against Binder and his associates as well as the police inspector for threatening and assaulting him.

8.However, for the next several years when the court proceedings kept stalling without any formal outcome, and when Binder continued to make threats against him to withdraw his case, the Applicant became so frustrated that he eventually stopped pursuing with his court case.

9.One day in August 2008 when the Applicant ran into Binder and his associates and saw them carrying wooden sticks and other weapons, he immediately ran away and fled to another town in Malur Bangalore where he stayed for the next seven years without further incidents.

10.On 6 March 2015 the Applicant decided to return to his home district believing that any problem with Binder would have died down over the past seven years, but when he was travelling on his motor cycle and saw Binder and his men standing by the side of the road to his home district with wooden sticks and other weapons, the Applicant immediately turned around and drove away to Delhi and took shelter at a friend’s place, where he was advised to leave the country to save his life, and so on 18 May 2015 he departed for Hong Kong where he overstayed and later raised his non-refoulement claim for protection,for which he completed a Non-refoulement Claim Form on 9 August 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

11.By a Notice of Decision dated 20 September 2017 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”).

12.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 the claimed risk of harm upon his return to India is real and foreseeable due to the low intensity and frequency of past ill-treatment from Binder or his associates, that it is unlikely that they would still have any adverse interest in him over such a small dispute after all these years, that in any event there is no reliable evidence of 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 2.9 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 Binder or his associates to locate him.

13.On 4 October 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended two oral hearings on 12 and 24 October 2018 before the Board with legal representation from DLS during which he gave evidence and answered questions put to him by the adjudicator for the Board and with submissions made on his behalf by his lawyer. On 7 January 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

14.In its decision the Board found incredibility and implausibility in the Applicant’s account of events occurred in India prior to his departure that he was not a witness of truth or that his allegation that his life was in danger from Binder or the police was credible, and that in any event with reasonable internal relocation available within India that he can without undue hardship relocate elsewhere in his country to safely earn his living without any risk of being located by Binder or his associates that his claim for non-refoulement protection failed on all applicable grounds.

15.On 17 January 2019 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, and in his supporting affirmation of the same date he merely stated that he would like to reject and review the Board’s decision for disregarding his dangerous situation but without providing any particulars or specifics or elaboration how it was so.  As such and in the absence of any error of law or procedural unfairness in his process before the Board and in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for him to challenge the finding of the Board.

16.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the 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 Nupur Mst v Director of Immigration [2018] HKCA 524.

17.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 23 – 25 of its decision with the benefit of hearing him in his oral evidence and answers to questions raised of his claim during his appeal hearing before the Board, and in the absence of any error in its decision being identified by the Applicant, I do not find any reasonably basis to challenge the finding of the Board.

18.Furthermore, the fact is 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.

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 11^th day of December 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