Kulwant Singh v. The Director of Immigration and Another

HCAL 1404/2018

[2020] HKCFI 1223

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1404 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 40-year-old national of India who entered Hong Kong illegally on 23 October 2009 and was arrested by police on 3 November 2009.  After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to India he would be harmed or killed by his paternal uncle over a property dispute, and after it was rejected, he then sought non-refoulement protection on the same basis.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Kartarpur, District Jalandhar, Province Punjab, India.  After leaving school he worked as a weight bridge operator in Punjab.

3.In 2005 his father transferred the legal title of his shop premises to the Applicant, but as his paternal uncle also had his shop next door and had always wanted the premises so that he could expand his own shop, and had in the past pestered the Applicant’s father to transfer the premises to him but the Applicant’s father had always refused to do so.

4.Upon hearing of the transfer, the uncle started to approach the Applicant for the transfer of the shop premises to him, and when the Applicant refused, his uncle on one occasion lost his temper and shouted at the Applicant and his father that there would be serious consequences.

5.One day in March 2009 while the Applicant was alone in his father’s shop, some men stormed in and accused him of refusing to transfer the premises to his uncle, and proceeded to beat him with wooden sticks before the Applicant managed to flee from the scene to hide in a friend’s place before seeking medical treatment in a local hospital.

6.After the incident the Applicant’s father made a report to the local police, but when he was told that the Applicant’s uncle had in fact earlier made a false charge against the Applicant, his father therefore advised the Applicant to go to Delhi to take shelter in a temple there where he stayed without incidents.

7.However, when the Applicant heard that his uncle was looking for him everywhere, he decided that it was no longer safe to remain in India, and so on 28 July 2009 he departed for China, and from there he later sneaked into Hong Kong and raised his torture claim, and after it was rejected, he then sought non-refoulement protection, for which he completed a Supplementary Claim Form on 11 May 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

8.By a Notice of Decision dated 21 June 2017 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the remaining applicable grounds except torture risk but including risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“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 of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his uncle upon his return to India as low due to the low intensity and frequency of past ill-treatment from him, that it was a private family dispute over property between them 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 (“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 working 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 uncle to locate him.

10.On 30 June 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 20 April 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board.  On 7 June 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.In its decision the Board found it doubtful that the Applicant would leave his home country over such a family dispute between his father and his uncle when there were various other more sensible and effective ways to resolve it such as by taking the matter to court, but concluded in any event that with state protection and reasonable internal relocation within India for him to move safely to other areas away from his home district such as Delhi where he had stayed before without incidents and without any risk of being located by his uncle that his claim for non-refoulement protection failed on all applicable grounds.    

12.On 17 July 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 put forward the following grounds for his intended challenge:

(1)     that the Adjudicator failed to make sufficient enquiry before finalizing the determination and without giving the Applicant sufficient chance to arrange relevant evidence for his non-refoulement claim as well as his appeal;

(2)     that the Director and the Adjudicator reached their decisions wrongly as unfair and unreasonable in assessing the Applicant’s non-refoulement claim;

(3)     that the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in the Applicant’s case which led to an unfair outcome in rejecting his claim;

(4)     that the Director failed to take into account the argument that the Applicant was tortured at the behest of and with full collusion of the police and the state law enforcement agencies that the state should be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(5)     that the Director failed to consider or give sufficient weight to those listed relevant COI which supported the Applicant’s aversions that the police in his country would not be able to protect;

(6)     that the Director instead relied on COI which suited his pre-conceived conclusion which was a clear case of unfair attitude enough to render his decision void;

(7)     that the Director failed to recognize that the corruption and incompetency of the administration in the Applicant’s country is a very serious problem as reported by various human rights organizations which stated testament to the Applicant’s assertions; and

(8)     that the Director failed to attain high standard of fairness required by the Wednesbury test that his decision should be considered unreasonable in the scope of public law.  

13.These are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the Adjudicator had erred in their decisions, or how did the Adjudicator fail to make sufficient enquiry or to give the Applicant sufficient opportunity to provide his evidence in support of his claim or appeal, or in what way was state of acquiescence relevant to his case, or how did the Director fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI or to apply high standard of fairness in assessing his claim.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge.

14.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.

15.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.     

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 22^nd 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