Satnam Singh v. Torture Claims Appeal Board

HCAL 217/2018

[2020] HKCFI 1002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 217 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 47-year-old national of India who arrived in Hong Kong on 24 June 2013 with permission to remain as a visitor extended up to 10 July 2013 when he did not depart and instead overstayed and was arrested by police on 30 November 2013. 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 bya disgruntled client over a business dispute.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Raimal Majri, Tehsil Nabha, District Patiala, Punjab, India.  After leaving school he first worked as a labourer and later started his own scrap brokerage business with a partner, and got married with a family.

3.One of his major clients was Sharda, a scrap trader with political connections as an influential supporter of the Bharatiya Janata Party (“BJP”).  In 2008 due to economic recession, the scrap of Sharda brokered by the Applicant to a factory failed to deliver the order,and as a result Sharda suffered heavy financial losses for which he blamed the Applicant.

4.One day in 2008 Sharda came with several men and accused the Applicant of causing him his financial losses, during which he and his men assaulted the Applicant who however managed to escape without serious injuries.

5.In June 2009 when the Applicant was nominated by his political party Congress Party (“CP”) to run for the village council election, Sharda mobilized strong oppositions from BJP against his campaign which caused many fights between supporters of the two rival parties, and during one of which Sharda and his men attacked the Applicant with a hard object that caused injury to his right eye and threatened to kill him next time.

6.After the election the Applicant encountered Sharda and his men when they tried to strangle him, but the Applicant managed to escape and ran from the scene.  After receiving treatment in the local hospital the Applicant reported the matter to the police but to no avail.

7.Thereafter as Sharda had continued to make death threats against him, the Applicantdecided to leave India in 2010 for the United Kingdom, and upon his return in 2012 he andhis family stayed in his in-laws’ home in Ludhiana instead of returning to his home village toavoid Sharda, but when he heard that Sharda was still looking for him everywhere, he felt that it was no longer safe to remain in India, and so in June 2013 he departed for Hong Kong where he overstayed, and upon his arrest by the police he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 16 November 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

8.By a Notice of Decision dated 31 October 2016 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”).

9.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 there will be any real risk of him being harmed or killed by Sharda upon his return to India due to the low intensity and frequency of past ill-treatment from him, 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 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 Mumbai or Ludhiana where he had stayed before without incidents prior to his departure and where it would be difficult if not impossible for Sharda to locate him.

10.On 9 November 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 6 November 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 15 January 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

11.In its decision the Board found the Applicant’s reasons for leaving India vague and confused, that his actions upon arrival in Hong Kong inconsistent with his claim to fear harm in India, and concluded that his claim that he was being pursued by Sharda for harm was a fabrication, and that it was not satisfied that there are any substantial or strong grounds or any real risk that he will suffer harm in India that would require non-refoulement protection in Hong Kong. 

12.On 12 February 2018 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, andin his supporting affirmation of the same date he merely repeated his claim that he cannot go back to his home country because his life would still be in danger, and that he just wanted to be allowed to remain in Hong Kong until his problems at home have been resolved.  He did not request any oral hearing for his application.

13.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 an applicant to present and articulate his claim is in the screening process and interview before the Immigration Department or 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.

14.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 38 – 48 of its decision and with the benefit of hearing him in evidence and in answer to questions raised of his claim at his oral hearing before the Board, and in the absence of any error of law or procedural unfairness in its decision or in his process before the Board being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.  

15.Furthermore, the fact 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.

16.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.

17.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