Satwinder Pal Singh v. Torture Claims Appeal Board

HCAL 2212/2018

[2021] HKCFI 343

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2212 of 2018

BETWEEN

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 the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

1.  the Application for Leave to Apply for Judicial Review be reinstated; and

2.  leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.The Applicant is a 32-year-old national of India who arrived in Hong Kong on 13 April 2014 with permission to remain as a visitor up to 27 April 2014 when he did not depart and instead overstayed and was arrested by police on 10 June 2014.  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 a local wealthy landlord who was against his brother dating the landlord’s sister.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Palaki, Tehsil Mukerian, District Hoshiarpur, India.  After leaving school he assisted his father in farming in his home village. 

3.In 2012 his brother Parminder started to date the younger sister of Surjit Singh (“Surjit”), a wealthy landlord in the village who was however against their relationship as he and his family looked down on the Applicant’s family.

4.One day in May 2013 Parminder who was with the Applicant in the village was confronted by Surjit about his relationship with Surjit’s sister, and when the Applicant tried to intervene, they were attacked by Surjit’s men with hockey sticks which caused serious bruising to both of them which subsequently required medical treatments at a local clinic.  Thereafter Surjit continued to make threats against both the Applicant and his brother, and after several more attacks by his men, the Applicant and his brother became fearful for their safety, and after Parminder had fled to Dubai in early 2014, the Applicant also followed suit to depart India on 16 March 2014 for Hong Kong where he subsequently overstayed, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 7 December 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.       

5.By a Notice of Decision dated 5 February 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”).

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 the risk of harm from Surjit and his family upon his return to India is real and foreseeable due to the low intensity and frequency of past ill-treatment from them, that after Parminder had left India and ceased his relationship with Surjit’s sister that there should be no more adverse interest in the Applicant, that in any event it was a private personal dispute between them 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 where it would be difficult if not impossible for Surjit or his men to locate him.

7.By a Notice of Further Decision dated 4 July 2017 the Director again rejected the Applicant’s claim in the absence of any response from him to an earlier invitation to submit 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”).

8.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 19 February 2016, and for which he attended an oral hearing on 16 August 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board.  On 2 October 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.In its decision the Board found the Applicant’s account of events occurred in India unreliable and doubted his claim of fear of harm from Surjit, that it was in any event a private personal dispute between them without any official involvement that state/police protection would be available to him upon his return to India as well as reasonable internal relocation for him to move safely to other area away from his home district without any risk of being located by Surjit or his men that his claim for non-refoulement protection failed on all applicable grounds. 

10.On 11 October 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 attached a copy of the Board’s decision but without putting forward any proper grounds for his intended challenge.

11.Before his application could be dealt with by the court, the Applicant on 4 July 2019 filed an affirmation requesting to withdraw his application as he wanted to go back to his home country.  Accordingly, I acceded to his request and directed that his application be withdrawn on 5 July 2019.

12.One year later on 8 October 2020 the Applicant filed another affirmation requesting to re-open his leave application as he found that his problem in his home country still exists.  Given the fact that his application has never been properly determined, and to save time and costs, I allow him to proceed with his leave application, and proceed to consider the merits of his application.

13.The Applicant however as noted above has failed to put forward any proper grounds for his intended application, nor did he appear at the scheduled hearing of his summons or respond to the subsequent request by the court for an explanation for his non-attendance or to submit any further representation from him regarding his application.  As such and in the absence of any error of law or irrationality 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.    

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, 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.       

16.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.Furthermore, the Applicant on 5 January 2021 filed an affirmation requesting to withdraw his leave application because all his “problems now finished” and that he wants to go back to his home country as soon as possible.

18.In the premises, as I am not satisfied for the reasons given that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation that the basis of his claim no longer exists, I therefore accede to his request and accordingly dismiss his leave application.

Dated the 9^th day of February 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