Manpreet Singh v. The Director of Immigration and Another

HCAL 1327/2018

[2020] HKCFI 300

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1327 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 23-year-old national of India who entered Hong Kong illegally on 20 March 2015 and surrendered to the Immigration Department on 23 March 2015 when he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his former schoolmate over certain political dispute.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Cheema Bath, Tehsil Baba Bakala, District Amritsar, Punjab, India.

3.In 2014 while he was in Pannu Polytechnic College, he had had a dispute with his schoolmate Raja who blamed him for causing him to lose his election for the presidency of the student union of the political party Shiromani Akali Dal (“SAD”), and one day in late 2014 Raja with his friends ambushed the Applicant on the street and attacked him with hockey sticks until they were restrained by other passers-by.

4.After the incident the Applicant fled to Amritsar city centre, and fearing for his life, he decided to leave India, and so in March 2015 he departed for China, and from there he sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 27 November 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.Whilst being released on recognizance, the Applicant was arrested by police on 13 June 2017 for using a false identity card and undertaking unauthorized employment for which he was subsequently convicted and sentenced to prison for 15 months.      

6.By a Notice of Decision dated 13 December 2017 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 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”).

7.In his decision the Director took into account of 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 Raja upon his return to India due to the low intensity and frequency of past ill-treatment from him, that it was a small dispute between them that it is doubtful that Raja would still have any adverse interest in the Applicant after all these years, that in any event 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 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 young man 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 Raja to locate him.

8.On 18 December 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 15 June 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 4 July 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found significant inconsistencies in the Applicant’s evidence about his dispute with Raja in college that his claim was considered as questionable and unreliable that it was not accepted that he has given a truthful or reliable account of his claimed experience in India, and concluded that he failed to establish his claim under any of the applicable risks that it failed on all applicable grounds for non-refoulement protection.

10.On 9 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 Director and the adjudicator reached their decisions wrongly in assessing the Applicant’s non-refoulement claim;

(2)  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 of rejecting his non-refoulement claim;

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

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

(5)  that the Director referred to relevant COI which suited his preconceived conclusion which was a clear case of unfair attitude in itself enough to render his decision void;

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

(7)  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;

(8)  that the adjudicator failed to make sufficient enquiries before finalizing the determination; and

(9)  that the adjudicator failed to give sufficient chance to the Applicant to arrange relevant evidence to his non-refoulement claim as well as his appeal.  

11.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 in what way was state acquiescence relevant to the Applicant’s claim, or how did the Director fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or how did the Director fail to apply high standard of fairness in assessing his claim, or how did the adjudicator fail to make sufficient enquiry or to give him sufficient opportunity to provide his evidence in support of his claim or his appeal.  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.

12.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.

13.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 57 – 65 with the benefit of hearing him in his oral evidence and in answers to questions raised of his claim during his appeal hearing, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

14.The fact is 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.     

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 14^th day of July 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