Case Document

100%Judiciary

HCAL 704/2018

[2020] HKCFI 2186

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 704 of 2018

BETWEEN

	Dandiwal Sandeep Singh	Applicant
	and
	Torture Claims Appeal Board	1^st Putative Respondent
	Director of Immigration	2^nd Putative Respondent

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 25-year-old national of India who entered Hong Kong illegally on 3 January 2016 and surrendered to the Immigration Department on 6 January 2016 when he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his uncle’s relatives over some personal disputes. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Ratia, Haryana, India. After leaving school he worked as a farmer and continued to live with his parents in his home village.

3.As his paternal aunt and her husband (“his uncle”) who lived in Punjab had no children of their own, they in 2015 adopted the Applicant as their son despite objections from his uncle’s relatives who were concerned that he may stand to inherit his uncle’s estate including land and property in Punjab, and started to make threats against the Applicant, and on two occasions they even attacked him with sticks.

4.Upon receiving medical treatment for his injuries, the Applicant reported the assaults to the police, but they refused to take the matters seriously as they regarded them as their family disputes. The Applicant therefore fled to other places to avoid his uncle’s relatives, but when he heard that they were looking for him everywhere, he felt it was no longer safe to remain in India, and so on 22 December 2015 he departed for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 14 June 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.By a Notice of Decision dated 30 June 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”).

6.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 and substantial risk of him being harmed or killed by his uncle’s relatives upon his return to India due to the low intensity and frequency of past ill-treatment from them, that his problems with them were family disputes 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 young man with working experience to move to other part of India away from his home district in large cities such as New Delhi or Mumbai where it would be difficult if not impossible for his uncle’s relatives to locate him.

7.On 10 July 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 13 December 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board. On 16 March 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found the Applicant’s evidence of his claim confused, vague, inconsistent and different from the one given to the Director that it had serious concerns about the general plausibility and veracity of his claim, and that in any event with state/police protection available as well as reasonable internal relocation within India for the Applicant to move safely to other area away from his home district without any risk of being located by his uncle’s relatives that his claim for non-refoulement protection failed on all applicable grounds.

9.On 23 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 attached a copy of the Board’s decision but without putting forward any proper ground 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 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 for his intended challenge.

10.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.

11.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.

12.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.

13.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 3^rd day of September 2020.

(NG Hang-yin)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or his solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 3^rd September 2020 Dandiwal Sandeep Singh Applicant’s ref. no.: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 3^rd September 2020 Torture Claims Appeal Board 1^st Putative Respondent’s ref. no.: USM 7730/17/7/111/IN1465 Director of Immigration 2^nd Putative Respondent’s ref. no.: QA T/C 1226/17 (formerly RBCZ 11978/16) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)