Rajinder Singh v. Torture Claims Appeal Board and Another

HCAL 570/2018

[2020] HKCFI 2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 570 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 38-year-old national of India who entered Hong Kong illegally in January 2016 and was arrested by police on 18 January 2016.  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 his two paternal uncles 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 Ranbir Singh Pura, District Jammu, Jammu and Kashmir, India.  After leaving school he worked as a farmer, got married and raised a family of 2 children.

3.His father used to hold a piece of land together with the Applicant’s two paternal uncles Kulwant and Baldev in the home village, but in the early 1990s Kulwant sold his share to the Applicant’s father, and while there was no written agreement for the transfer, it was done in the presence of the Applicant’s aunts.  In 2007 the Applicant’s father passed away, and his interest in the land passed to the Applicant.

4.Over the years the value of the land had risen, and Kulwant began to regret having sold his share in the land, and in 2009 he started to insist that he was still one of the owners and demanded to have the right to farm on it.

5.One day in March 2009 while the Applicant was farming on the land, Kulwant and his sons came on the land and demanded the Applicant to leave his land, and when the Applicant insisted that he no longer had any interest in the land and refused to leave, Kulwant and his sons proceeded to assault him by slapping and punching him, and before they left Kulwant threatened to kill him if he failed to heed his demand to hand over the land.

6.Shortly thereafter the Applicant was told to go to the local police station to sort out his dispute with Kulwant over the land, and under the police’s influence and the threats of Kulwant and with Baldev also sided with Kulwant, the Applicant eventually yielded to their demand and agreed that Kulwant still held his share in the land.

7.Thereafter and to avoid any further confrontation with his uncles, the Applicant stopped farming on the land and instead worked as a driver for a company.  However, upon discussing the matter with his other relatives, he decided to take the dispute to the court by filing an action against Kulwant over the land in the High Court of Jammu in which the legal proceedings took several years, and during which his uncles persistently made threats against him over the legal proceedings.

8.One day in March 2014 while the Applicant was working on his land, he was attacked by several men in masks with wooden sticks that he fell onto the ground unconscious, and was later taken to the hospital by his friends for medical treatment.  Upon discharge from the hospital, the Applicant suspected that those assailants were sent by his uncles yet he did not report the assault to the police as he believed that the police were under his uncles’ influence and would not offer any help to him.

9.As he became fearful for his safety, the Applicant decided to leave India, which he did on 12 April 2014 for Hong Kong, but when he was refused permission to land by the Immigration Department, he sought non-refoulement protection but subsequently withdrew it and was in June 2014 repatriated to India.

10.Upon returning home the Applicant tried to avoid any further confrontation with his uncles, but they continued to send men to threaten him to withdraw his court action against them, and on one occasion after he had a fight with those men, the Applicant was arrested by the police for fighting and was detained in the police station for interrogation during which he was beaten by the police until eventually his wife had paid a bribe for his release without charge.

11.Several weeks later some men whom he suspected were sent by his uncles appeared outside his home shouting abuses and threats against him, and fearful for their safety, the Applicant and his family then fled to the city of Jammu, but when those men in early January 2016 again came to his home in Jammu shouting abuses and threats, the Applicant felt that it was no longer safe to remain in India, and so on 12 January 2016 he departed for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 23 March 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.         

12.By a Notice of Decision dated 2 September 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 Ordinance, Cap 383 (“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”).

13.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 uncles upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that it was a 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 adult with working 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 uncles to locate him.

14.By a Notice of Further Decision dated 14 November 2017 the Director again rejected the Applicant’s claim in the absence of any additional 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”).

15.By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 8 September 2016, and for which he attended an oral hearing on 27 November 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 28 March 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

16.In its decision the Board accepted that it is plausible that the Applicant did have a land dispute with his uncles before the court, but found significant inconsistencies, omissions and changes in his evidence as to his claim of being harmed or threatened with violence by his uncles over the land dispute including his concession made at his appeal hearing that his uncle Kulwant was in fact living in UK at the material time and was not involved in any of the incidents which were said to have taken place in India that the Board had serious doubt over the credibility of the Applicant’s evidence and the truth of his claim that it concluded that he had fabricated and embellished his evidence to advance a claim for non-refoulement protection that his claim failed on all applicable grounds.

17.On 6 April 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 in his Form, and in his supporting affirmation of the same date he merely stated that he was not satisfied with the decisions and asked that his claim be reconsidered but without providing any proper or valid ground as to any error of law or procedural unfairness in his process before them or in their decisions for his intended challenge.  Nor did he request any oral hearing for his application.  As such I do not find any reasonably arguable basis for his intended challenge. 

18.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.

19.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 65 – 74 of its decision with the benefit of hearing him in his oral evidence and his 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.

20.Furthermore, the fact 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.

21.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.

22.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 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