Nirmal Singh v. Torture Claims Appeal Board

HCAL 218/2018

[2020] HKCFI 1185

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 218 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 32-year-old national of India who arrived in Hong Kong on 15 April 2014 with permission to remain as a visitor up to 29 April 2014 when he did not depart and instead overstayed and was arrested by police on 18 July 2014. After he was referred to the Immigration Department for investigation, he raiseda non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his uncle over a land dispute.  He has since been released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Talwandi Rama, District Gurdaspur, Punjab,India.  After leaving school he farmed on his father’s farmland in the village.

3.In 2006 he and his brother inherited the farmland from their father.  As his uncle who was the village head also owned land adjacent to their farmland, there had been frequentdisputes between them over the boundary separating their land and his uncle’s attempts to divert water over the boundary from the Applicant’s land onto his own land.

4.On one occasion in late 2009 when his uncle broke down part of the fences separating their land and again tried to divert water onto his land, a heated argument broke out between them followed by a fight during which the Applicant hit his uncle on the head with a wooden stick, and when he saw blood coming out of his uncle’s head wound, he fled from the scene to hide in his friend’s place in the neighbouring village, and when he heard that his uncle was looking for him, he departed for Malaysia in 2010 to stay with a friend there where he worked as a gardener.

5.In early 2014 the Applicant returned to India and stayed at another friend’s place inJalandhar in Punjab without any incidents, but when he heard that his uncle had learnt abouthis return to India and was again looking for him, the Applicant decided that it was not safeto remain in India as his uncle was influential with connections to the ruling political party, hetherefore departed on 14 April 2014 for Hong Kong where he subsequently overstayed and raised his non-refoulement claim, for which he completed a Non-refoulement Claim Form on 21 January 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.By a Notice of Decision dated 21 June 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”).

7.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 uncle to the Applicant upon his return to India as low due to the absence of past ill-treatment from him, that there is no reliable evidence of any real intention on the part of his uncle to seriously harm or killthe Applicant, that it was a private family dispute over land without 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 3.2 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied young man with work experience to move to other part of India away from his home district in large cities such as Delhi or Mumbai where it would be difficult if not impossible for his uncle to locate him.

8.By a Notice of Further Decision dated 18 July 2017 the Director again rejected the Applicant’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”).

9.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 whichwas filed on 30June 2016, and for which he attended an oral hearing on 29 November 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 26 January 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.In its decision the Board found inconsistencies and exaggerations in the Applicant’s account of his dispute with his uncle over the boundary separating their farmland that his claim was not credible, that in any event state or police protection would be available to theApplicant, as well as internal relocation alternatives that it is not unduly harsh or unreasonable for him with education and working experience to relocate to other large cities in India such as Ludhiana where he will not face any risk under any of the applicable grounds.

11.On 12 February 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given either in his Form or in his supporting affirmation of the same date.  In the absence of any valid ground or complaints of any error in those decisions being put forward by the Applicant, I do not find any basis or merits in his intended application. 

12.As has been repeatedly emphasized by the Court of Appeal, 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 The Director of Immigration [2018] HKCA 524.

13.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the analysis and reasoning set out in paragraphs 12 – 19 of its decision with the benefit of hearing him in evidence and answers to questions at his appeal hearing, and in the absence of any legal error or procedural unfairness in the decision being identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

14.Furthermore, the fact 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.

15.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.

16.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 17^th 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