Singh Gurvinder v. Torture Claims Appeal Board

HCAL 876/2018

[2021] HKCFI 81

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 876 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 34-year-old national of India who arrived in Hong Kong on 10 December 2015 with permission to remain as a visitor up to 24 December 2015 when he did not depart and instead overstayed, and on 29 December 2015 he surrendered to the Immigration Department and 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 Indian National Congress (“INC”). He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Area Tilak Nagar, New Delhi, India. After leaving school he worked in various banks before starting his own import/export business, got married and raised a family with a daughter, and became a supporter of political party Bharatiya Janata Party (“BJP”) regularly participating in their local social work activities.

3.During the general legislative election of 2013, the Applicant and his fellow BJP supporters had come into several violent clashes with INC supporters during which he had sustained various injuries, but when the threats and attacks from the INC people had persisted even after the election well into 2015, the Applicant decided that it was not safe to remain in India, and so he departed for Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 9 March 2017 with legal representation from the Duty Lawyer Service (“DLS”) but failed to attend any screening interview before an immigration officer due to alleged medical reasons.   

4.By a Notice of Decision dated 28 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”).

5.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found the material information provided by him in support of his claim unreliable and incredible, that in any event the level of risk of harm from those INC people upon his return to India was assessed as low due to the low intensity and frequency of past ill-treatment from them, that there is no reason to believe that they would have any serious intention to harm him, 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 (“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 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 those INC people to locate him.

6.The Applicant then 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 30 April 2018 before the Board during which he relied on the information previously given to the Immigration Department but declined to give any further evidence or to answer any question in respect of his claim from the Adjudicator for the Board. On 10 May 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

7.In its decision the Board found many questions going into the core of the Applicant’s case that needed to be answered by the Applicant in order to establish his claim for non-refoulement protection but which he for no reason declined to do so at his appeal hearing, and of which the Board found to be without a sufficiently established relevant factual foundation that it did not accept there was any or any sufficient evidence to support the Applicant’s claimed fear of harm from those INC people or that there was any real risk of serious personal harm to him upon his return to India that his claim for non-refoulement protection failed on all applicable grounds. 

8.On 21 May 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 simply stated that he rejects the decision as it disregarded his dangerous situation but without providing any particulars or elaboration how it was so or put forward any other ground for his intended challenge, nor did he request any oral hearing for his application. As such I do not find that the Applicant has put forward any reasonably arguable basis for his intended challenge.

9.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.

10.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 25 – 28 of its decision when the Applicant for no reasonable cause declined to answer or clarify those many questions raised of his claim during his appeal hearing, in particularly when the Director also in his decision raised the same issue over his credibility and of which the Applicant must have been well aware when he was then still legally represented by DLS and that such issues must have been explained and advised to him before he lodged his appeal to the Board. In the circumstances 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.  

11.Furthermore, the fact is 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. 

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 11th day of January 2021.

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