Binder Singh v. Immigration Department

HCAL 582/2018

[2020] HKCFI 1779

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 582 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 44-year-old national of India who arrived in Hong Kong on 26 June 2014 with permission to remain as a visitor up to 10 July 2014 when he did not depart and instead overstayed and was arrested by police on 4 December 2014.  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 by some fellow villagers over a land dispute.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Kapoori, District Patiala, Punjab, India.  After leaving school he first worked as a casual labourer, and in 2001 started to work on his family farmland inherited from his grandfather.

3.However, a fellow villager Jeet who was also a farmer in the same village but with political connections coveted his family farmland and started to dispute the title over the land, which had led to one occasion when Jeet’s son physically attacked the Applicant’s elder brother and knocked him unconscious, and when the Applicant’s father confronted Jeet over the attack, he was also assaulted by Jeet with a sharp object that he had to be brought to the hospital for medical treatment.

4.As a result Jeet and his son were arrested by the police, and were eventually charged and convicted by the court for assaults and were sentenced to prison for 2 ½ years.

5.However, upon their release from prison in 2013, Jeet and his son continued to harass and threaten the Applicant’s family over the land, during which the Applicant was attacked on several occasions with wooden sticks, and on other occasions he was threatened that they would kill him.

6.Fearing for his life, the Applicant therefore fled his home village for other towns in Punjab before eventually departing India on 23 June 2014 via Thailand for Hong Kong where he overstayed his tourist visa, and upon his subsequent arrest by the police he raised his non-refoulement claim for protection, for which he completed a Non‑refoulement Claim Form on 23 June 2015 with legal representation from the Duty Lawyer Service but failed to attend the scheduled screening interview before the Immigration Department due to alleged health reason.

7.By a Notice of Decision dated 28 March 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”).

8.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 Jeet and his son upon his return to India as low due to the low intensity and frequency of past ill‑treatment from them, that it was a private land dispute 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 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 adult with working experience to move to other part of India away from his home district in large cities such as Mumbai where it would be difficult if not impossible for Jeet or his son to locate him.

9.On 6 April 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 29 December 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 13 March 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board found on the Applicant’s own case of no real intention on the part of Jeet or his son to harm or kill the Applicant over the land dispute, that in any event with state/police protection available to the Applicant if needed as evidenced by the fact that Jeet and his son had been arrested by the police and sent to prison by the court in the past over the same dispute, and that also with reasonable internal relocation for the Applicant to move safely to other parts of India away from his home district to re‑establish his life and work without any risk of being located by Jeet that his claim for non‑refoulement protection failed on all applicable grounds.

11.On 9 April 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, and in his supporting affirmation of the same date he merely stated that he rejected the decision because it disregarded his dangerous situation but without providing any particulars or elaboration as to how it was so or putting forward any proper grounds for his intended challenge, nor did he request any oral hearing for his application.  As such and in the absence of any error of law or procedural unfairness in the Board’s decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis 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.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.

14.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.

15.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 4^th day of August 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