Balwinder Singh v. Torture Claims Appeal Board

HCAL 622/2018

[2020] HKCFI 2128

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 622 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 33-year-old national of India who last arrived in Hong Kong on 15 April 2014 with permission to remain as a visitor up to 29 April 2014 when he did not depart and instead overstayed, and on 30 April 2014 he surrendered to the police and after he was transferred to the Immigration Department for further investigation, he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his former business associate over some business disputes.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in District Ludhiana, Punjab, India.  After leaving school he followed his family’s tradition to support the political party Congress Party (“CP”), and in 2007 started to run a business making wedding cards and gifts in his home district.

3.In about late 2013 he had a dispute over the quality of the goods supplied by a Mr Prince whose company used to provide materials to the Applicant for making wedding cards, during which the Applicant had been beaten by Mr Prince and his men on several occasions with hockey sticks, and when the local police failed to deal with the Applicant’s report as Mr Prince was a member of the political party Akali Dal Party (“ADP”), the Applicant felt that his life was in danger and so he fled to Delhi, and from there he departed for Hong Kong where he overstayed and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 5 October 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

4.By a Notice of Decision dated 15 January 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”).

5.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 Mr Prince upon his return to India as low due to the low intensity and frequency of past ill-treatment from him, that his problem with Mr Prince was a private business dispute 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 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 Mr Prince to locate him.

6.By a Notice of Further Decision dated 22 June 2017 the Director again rejected the Applicant’s claim upon receiving and considering additional information from the Applicant via DLS 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”).

7.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 22 January 2016, and for which he attended an oral hearing on 13 September 2017 with legal representation from DLS before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board and with submissions made on his behalf by his lawyer from DLS.  On 22 March 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

8.In its decision the Board found the Applicant’s dispute with Mr Prince was a private and personal matter without any state or official involvement that state/police protection would be available to the Applicant upon his return to India as well as the option of reasonable internal relocation within India for him to move safely to other area away from his home district without any risk of being located by Mr Prince that his claim for non-refoulement protection failed on all applicable grounds.    

9.On 12 April 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1) irrationality in failure to consider the concept of state acquiescence;

(2) procedural impropriety in making insufficient inquiry;

(3) failure to provide adequate reasons for its decision;

(4) procedural impropriety/unfairness in failure to investigate into the COI of India;

(5) irrationality in failure to place weight on relevant information and/or selectively placing weight on irrelevant information;

(6) irrationality in failure to consider a consistent system of human right violations;

(7) irrationality in failure to consider if state protection exists in India;

(8)  irrationality in placing weight on irrelevant matters or on inaccurate or incorrect facts;

(9)  procedural impropriety in failing to call for psychological and/or psychiatric reports and/or evaluations;

(10) procedural impropriety in applying the incorrect standard of proof;

(11) failure to give reasonable basis for rejecting his claim;

(12) failure to consider the extended form of state acquiescence;

(13) failure to fully consider the COI reports in assessing risk to the Applicant;

(14) irregularity of the decision-maker being a different person than the interviewing officer; and

(15) no proper basis for consideration of internal relocation.   

10.All these however appear to be some standard pro forma grounds of appeal commonly used in this type of application without little relevancy to the Applicant’s case, or are just broad and vague assertions of the Applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision, or in what way was the concept of state acquiescence relevant to his claim, or how did the adjudicator fail to make proper or sufficient inquiry or to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or how did the adjudicator apply the incorrect standard of proof in assessing his credibility.

11.None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, while there is simply no basis for his complaint of the adjudicator being a different decision-maker from the immigration officer in his appeal as it is actually a safeguard for fairness, and I fail to see how he could be prejudiced or adversely affected by the fact that his appeal was heard by someone other than the immigration officer who had in fact earlier rejected his claim.  As such 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 of these grounds 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 fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in his 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 1^st day of September 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