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

HCAL 182/2018

[2020] HKCFI 999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 182 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 36-year-old national of India who arrived in Hong Kong on 30 December 2013 with permission to remain as a visitor up to 13 January 2014 when he did not depart and instead overstayed and surrendered to the Immigration Department on 3 March 2014 and subsequently raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by the family members of the victim of a traffic accident for which he was blamed and/or by members of the political party Shiromani Akali Dal (“SAD”) as the victim was one of their fellow and important member.  He has since been released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in New Shimla Puri, Ludhiana, Punjab, India. After leaving school he mainly worked as a driver and became a supporter of the political party Congress Party (“CP”).

3.One day in November 2013 while he was driving from Ludhiana to Delhi, he struck a motorcycle and ran over the motorcyclist in a traffic accident. As he panicked he fled from the scene without stopping or reporting the accident to the police.

4.Later when he was told that the motorcyclist had died from the accident and that he was some influential member of SAD, the Applicant quitted his job and hid in his home,but when he heard that some men were looking for him, and that on one occasion when he was attacked by some unknown men on the street with hockey sticks, he suspected that they were either family members of the victim or SAD members trying to take revenge against him, he became fearful for his life that on 30 December 2013 he departed India for Hong Kong where he subsequently overstayed and raised his non-refoulement claim,for which he completed a Non-refoulement Claim Form on 30 October 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.By a Notice of Decision dated 11 March 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”).

6.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 perceived enemies 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 he had been targeted by the family members of the victim or by the SAD members that any threats that they were going to take revenge against him for the traffic accident was merely his own speculation, that in the absence 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 populationof 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 his perceived enemies to locate him.

7.By a Notice of Further Decision dated 12 June 2017 the Director again rejected theApplicant’s claim in the absence of any response from him to an earlier invitation to submitadditional 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”).

8.By then the Applicant was already in the process of appealing to the Torture ClaimsAppeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 17 March 2016, and for which he attended an oral hearing on 19 September 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 19January 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.In its decision the Board found that the Applicant had failed to establish a well-founded fear that he will face a real or genuine risk of harm under any of the applicable grounds even on the basis of his own case, and that in any event it is not unreasonable for him to relocate to other regions in India such as Delhi where it would lower or negate any of his perceived risk of harm.

10.On 7 February 2018 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 the following grounds for his intended challenge:

(1)  irrationality in its failure to consider the concept of state acquiescence;

(2)  procedural impropriety in making insufficient inquiry and in failing to provide adequate reasons as to decision made;

(3)  procedural impropriety/unfairness in failure to investigate into COI of India;

(4)  irrationality in failure to place weight on relevant information and/or selectively placing weight on irrelevant information;

(5)  irrationality in failure to consider a consistent system of human right violations;

(6)  irrationality in failure to consider if state protection exists in India;

(7)  irrationality in placing weight on irrelevant matters or on inaccurate or incorrect facts;

(8)  procedural impropriety in failing to call for psychological and/or psychiatric reports and/or evaluations;

(9)  procedural impropriety in applying the incorrect standard of proof in rejecting the credibility of his claim;

(10)  irregularity of the decision-maker being a different person than the interviewing officer; and

(11)  no proper basis for consideration of internal relocation as his life would still be in danger if returned home.

11.These are however all just broad and vague assertions of the Applicant containing various key words and phrases but without any particulars or specifics or elaborations as tohow they applied to his case or how the Board or the adjudicator had erred in the decision, orin what way did the adjudicator fail to take into account relevant COI or being selective orimproperly rely on irrelevant COI, or what relevancy was the concept of state acquiescence to his claim, or why was it necessary or relevant to call for psychological or psychiatric evaluations in his case, or in what way did the adjudicator apply the incorrect standard of proof.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and in the absence of any legal error or procedural unfairness or irrationality in the decision being clearly and properly identified and elaborated by him,I do not find any of these grounds reasonably arguable for his intended challenge.

12.As for his complaint that his appeal before the Board was heard by someone different from his interviewing immigration officer, I fail to see any rationale for insisting that it be heard by the same person, as the mechanism for his appeal which is a rehearing of his claim to be before a different person is actually a safeguard for fairness, and I fail to see how he could be prejudiced or adversely affected by his appeal being heard by an adjudicator from the Board.  There is simply no basis or merit in this complaint of the Applicant either.

13.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.

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 3^rd day of June 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