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

HCAL 1163/2018

[2020] HKCFI 91

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1163 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 entered Hong Kong illegally on 13 November 2015 and was arrested by police on the same day.  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 paternal uncle over a land dispute.  He was subsequently being released on recognizance pending the determination of his claim. 

2.The Applicant was born and raised in Hasanpur, Khurd, Punjab, India. After leaving school he went to work in the Middle East before returning home to India in 2014 to work on his father’s farmland in his home village.

3.As his father’s farmland was right next to the land of his paternal uncle who coveted his father’s land, in early 2015 his uncle offered to buy his father’s land but was refused byhis father, as a result his uncle turned his target against the Applicant who one day stood to inherit the farmland from his father.

4.One day in mid-2015 while the Applicant was working on his father’s farmland, his uncle came onto the land and started a quarrel with him which led to a scuffle between them, and when his uncle eventually left, he threatened to kill the Applicant if he was not given the land.

5.On another occasion in July 2015, while the Applicant was on his way to the town,he was confronted by his uncle and his son which led to a fist fight between them until they were restrained by other passers-by when his uncle again uttered death threats to the Applicant before leaving with his son.

6.When the Applicant thereafter reported the incidents to the village council but was told to resolve their disputes between themselves, he felt it was no longer safe to remain in India as his uncle was influential in his home village with political connections, and so on 5 October 2015 he departed for Hong Kong, but when he was refused entry by the Immigration Department, he returned to India and in November 2015 he departed again but this time for China, and from there he sneaked into Hong Kong, and upon his arrest by the police he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 20 September 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.By a Notice of Decision dated 19 October 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 and non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) 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”).

8.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 paternal uncle upon his return to India as low due to the absence or low intensity and frequency of past ill-treatment from his uncle, that it was a family dispute between them without 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 adult with work experience to move to other area of India away from his home district in large cities such as New Delhi where it would be difficult if not impossible for his uncle to locate him.

9.On 27 October 2017 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 2 May 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 12 June 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board accepted that the Applicant and his father had a dispute with his uncle over the farmland which had led to several fights between them, but found no reliable evidence to suggest any real intention on his uncle to carry out his threats against the Applicant, and that in any event such risk was confined to his home area that with reasonable internal relocation available that the Applicant can safely move to other part of India which would mitigate or remove any such risk that his claim for non-refoulement protection failed on all applicable grounds.

11.On 21 June 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 in his supporting affirmation of the same date he put forward various grounds for his intended challenge summarized as follows:

(1) that he was not provided any legal representation in his appeal before the Board;

(2) that his case was determined unfairly by the Director and the Board;

(3) that the Board wrongly exercised its case management about the COI as to the inefficiency of state protection and disregarded such on-going inefficiency by relying on other COI that support state protection in India;

(4) that the decisions of the Director and the Board were not properly interpreted to him as he cannot read English and did not understand their contents, nor were the documents in his hearing bundle for his appeal before the Board; and

(5) that the Board did not judge fairly the risk and threats which he would face in India. 

12.For his complaint in Ground (1) of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standards of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

13.The Applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal hearing before the Board and to answer questions put to him by the adjudicator without difficulty.  I do not find anything amiss arising from the lack of legal representation in his appeal process,and I do not think this ground is reasonably arguable.

14.As for his complaints under Grounds (2) and (5) that his claim of risk of harm had not been fairly determined by the Director and the Board, it is just a broad assertion without any particulars or elaborations that I do not find it reasonably arguable for his intended challenge.

15.The same can be said about his complaint under Ground (3) in respect of the Board’s consideration of the relevant COI on state protection, given the fact that he had never sought assistance from the state or the police over the threats from his uncle, and having examined those relevant COI referred to in both the decisions of both the Director and the Board, I do not find any merit in this ground of the Applicant, nor is it reasonably arguable for his intended application either. 

16.As for his complaint under Ground (4) of not being provided with a translation of the decisions of the Director or the Board, they cannot per se form the basis of any ground for review, whereas for the documents in the hearing bundle for his appeal before the Board, I note that most of the documents should by then be well familiar to him as it is clear that his NCF was completed on his instructions to his legal representation from DLS, and that he was assisted by an interpreter at his appeal hearing before the Board.  In the absence ofany particulars or specifics to demonstrate that the basis of his claim has indeed been wrongly interpreted or wrongly understood by the Board, I find this complaint of the Applicant simply speculative and without basis.

17.As has been repeatedly emphasized by the Court of Appeal, evaluation of risk of harm is primarily a matter for the Director and the Board 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 Nupur Mst v Director of Immigration [2018] HKCA 524.

18.In the Applicant’s case, as already noted above, in the absence of any error of law or procedural unfairness in his process before the Director or the Board or in their decisionsbeing clearly and properly identified by the Applicant with sufficient particularity, I do not find any reasonably arguable basis for him to challenge those decisions.

19.Furthermore, the fact is that it has been established by both the Director and the Board in their decisions 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.

20.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.

21.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 20^th day of January 2020.

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