Gurpreet Singh v. Torture Claims Appeal Board

HCAL 733/2018

[2020] HKCFI 2373

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 733 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 40-year-old national of India who arrived in Hong Kong on 24 January 2014 but when he was refused entry by the Immigration Department, he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by the local supporters of rival political party Shiromani Akali Dal Party (“SAD”).  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Ramuwala, Punjab, India.  After leaving school he worked as a farmer in his home village, and followed his family’s tradition and his father’s footstep to become a supporter of the political party Indian National Congress (“INC”) regularly attended their local political activities, during which he had come into conflicts with some of the rival local SAD supporters.

3.One day in 2009 he was approached by a group of SAD supporters demanding him to quit his party and to join SAD, but when he refused, they threatened that they would cause trouble to him and suggested that he should seriously consider their demand before they left.

4.Thereafter those SAD supporters would continue to harass and threaten the Applicant, and on one occasion in October 2011 they assaulted him with wooden sticks until they were intervened by other villagers, and before they left they threatened that next time they would kill the Applicant. 

5.After the incident the Applicant reported the matter to the police, but when they refused to help, and as the harassments and assaults persisted, the Applicant left his home village for New Delhi, but when he heard that those SAD supporters were looking for him everywhere, he felt it was no longer safe to remain in India, and so on 26 January 2014 he departed for Hong Kong, and when he was refused entry he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 17 April 2014 with legal representation from the Duty Lawyer Service but failed to attend several scheduled screening interviews before the Immigration Department due to alleged health reasons.      

6.By a Notice of Decision dated 25 February 2015 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”).

7.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 those local SAD supporters upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that there is no reason why those SAD supporters would still have any adverse interest in him after all these years and given that he had no official position in INC, that 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 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 where it would be difficult if not impossible for those local SAD supporters to locate him.

8.On 10 March 2015 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 9 December 2015 before the Board during which he declined to give evidence or to answer any questions raised of his claim by the adjudicator for the Board.  On 7 December 2016 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board found the information and materials previously provided by the Applicant to the Director vague and lack of details but in the absence of any oral evidence or clarifications from him during his appeal hearing when he declined to give evidence or to answer questions put to him by the adjudicator that it found his claim wholly unreliable, and that in any event with many options of reasonable internal relocation within India for him to move safely to other area away from his home district upon his return to India without any risk of being located by those SAD supporters that his claim for non-refoulement protection failed on all applicable grounds. 

10.On 10 March 2017 the Director on his own initiative in writing invited the Applicant to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”), and upon considering those additional information submitted by the Applicant, the Director by a Notice of Further Decision dated 6 April 2017 rejected his claim under BOR 2 risk.

11.The Applicant again lodged an appeal to the Board against the Director’s Further Decision, and for which he attended another oral hearing on 19 January 2018 before the Board during which he did give further evidence and also answered questions put to him by the adjudicator for the Board.  On 19 April 2018 his appeal was again dismissed by the Board which also confirmed the further decision of the Director.

12.In this decision the Board found the Applicant’s new facts that his father and family now support the political party Aam Aadmi Party (“AAP”) which would not assist or advance his claim under any of the applicable grounds including BOR 2 risk as AAP is now the ruling party, and that in any event even on the basis of his own case that there is no evidence that BOR 2 risk would be engaged that his claim for non-refoulement protection again failed on all applicable grounds including BOR 2 risk.      

13.On 26 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 the Board’s decision is unfair and erroneous without providing any particulars or elaboration how it is so or putting forward any other 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 to challenge the finding of the Board.

14.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.

15.In the Applicant’s case, even on the facts of his claim, and in the light of the scope and threshold of a BOR 2 claim, there is simply no room for engaging the BOR 2 ground, of which the Board was entitled to find, and in my view correctly so.  Furthermore, the fact that it has been established by both the Director and the Board in their earlier decisions 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.     

16.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.

17.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 22^nd 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