Sidhu Balveer Singh and Others v. Torture Claims Appeal Board

HCAL 312/2018

[2020] HKCFI 778

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 312 of 2018

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 Applicants:

1.The 1^st and 2^nd Applicants are husband and wife and both nationals of India who arrived in Hong Kong on 31 December 2014 with permission to remain as visitors up to 14 January 2015 when they did not depart and instead overstayed until 15 January 2015 when they surrendered to the Immigration Department and jointly raised a non-refoulement claim on the basis that if they returned to India they would be harmed or killed by some local followers of the religious group Dera Sacha Sauda (“DSS”) over certain dispute.  Whilst being released on recognizance pending the determination of their claim, the 2^nd Applicant (“A2”) gave birth to their daughter, the 3^rd Applicant (“A3”), in Hong Kong and for whom they also subsequently raised a non-refoulement claim on the same basis, and was accordingly determined jointly with their earlier claim.

2.The 1^st Applicant (“A1”) was born and raised in Rasulpur, Tehsil Jagraon, District Ludhiana, Punjab, India.  After leaving school he went to work in United Arab Emirates until 2012 when he returned to his home village in India and married A2.

3.One day in October 2014 when A1 and a friend passed through a religious gathering of DSS followers in the village when his friend broke into an argument with some of the followers which led to a fight during which the Applicant and his friend were punched and kicked by a group of 4 – 5 DSS followers.

4.After the incident A1 and his friend made a complaint to the village head about the behavior of the group of DSS followers, and the village head promised to have a word with those DSS followers.

5.Several weeks later one evening when A1 went to visit his friend and found him dead on the floor with multiple injuries all over his body.  A1 then accompanied his friend’s father to report the murder to the police, suspecting that the group of local DSS followers might be involved.

6.As a result the police arrested the group of DSS followers for investigation,but eventually released all of them due to lack of evidence.  On the same night that group of DSS followers came to A1’s home looking for him, and when they could not find him as he was out, they threatened his father that they would kill A1 for making the false claim to the police.

7.A few days later the same group of DSS followers again came to A1’s home looking for him but when they were told that he was not in the house, they pushed A2 to the ground and threatened to kill A1, and if they could not find him, they would kill her instead.

8.On the following day A1 and A2 fled to Lakhar to take shelter at the home of A2’s parents where they stayed without incidents, but when they heard that those DSS followers were still looking for them everywhere, they decided that it was no longer safe to remain in India, and so on 31 December 2014 they departed for Hong Kong where they subsequently overstayed and raised their non-refoulement claim for protection, for which they completed their Non-refoulement Claim Form on 20 June 2016, and upon giving birth to A3 on 6 July 2015, A2 then raised a non-refoulement cliam on her behalf on the same basis, which was then jointly assessed together their earlier claim.

9.By a Notice of Decision dated 24 October 2016 the Director of Immigration (“the Director”) rejected the Applicants’ claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of their 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”).

10.In his decision the Director took into account all the relevant circumstances of the Applicants’ claim and found no substantial grounds for believing that there will be any real and substantial risk of the Applicants being harmed or killed by those DSS followers upon their return to India due to the low intensity and frequency of past ill-treatment from them,that in the absence of official involvement that state or police protection would be available to the Applicants 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 A1 as an able-bodied adult with work experience to move safely with A2 and A3 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 those DSS followers to locate them.

11.On 7 November 2016 the Applicants lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which they attended an oral hearing on 30 October 2017 before the Board during which A1 gave evidence for himself and his family and answered questions put to him by the Adjudicator for the Board.  On 1 December 2017 their appeal was dismissed by the Board which also confirmed the decision of the Director.

12.In its decision the Board found contradictions and inconsistencies and unexplained gaps in the Applicants’ evidence that it did not accept that they had ever been threatened or pursued by the DSS followers or that the DSS followers would have any adverse interest in the Applicants, and concluded that the Applicants had fabricated their claims that there is not a real risk that they would face any of the proscribed forms of harm should they return to India that their claims failed on all the applicable grounds.

13.On 28 February 2018 the Applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in the Form, and in A1’s supporting affirmation of the same date he merely repeated the claim that their life would still be in danger in their home country and asked that they be allowed to stay in Hong Kong until their problem has been solved.

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 an 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.In the Applicants’ case, the Board rejected their claims essentially on the adverse finding on their credibility as to their claimed fear of harm from the DSS followers for the thorough and detailed analysis and reasoning set out in paragraphs 82 – 111 of its decision and with the benefit of hearing A1 in evidence and in answers to questions raised of their claims during the oral hearing of their appeal, and in the absence of any error of law or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis to challenge the finding of the Board.

16.Furthermore, the fact that it has been established by the Director in his decision that the risk of harm in the Applicants’ claim is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of India, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

17.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 Applicants’ claim.

18.For these reasons I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, and I accordingly refuse their leave application.

Dated the 23^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