Vikramjeet Singh v. Torture Claims Appeal Board

HCAL 414/2020

[2021] HKCFI 556

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 414 of 2020

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 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:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 34-year-old national of India who last entered Hong Kong illegally in early 2011 and was arrested by police on 23 February 2012. After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to India he would be harmed or killed by his girlfriend’s brother who was against their relationship, and after his torture claim was rejected, he then sought non-refoulement protection on the same basis. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Munda Pind, Tehsil Khadoor, District Tarntaran, Punjab, India. After leaving school he worked as a driver, and in 2007 dated his girlfriend who was from a wealthy family with political connections.

3.However, in 2008 their relationship was discovered by her brother who was against their relationship and demanded the Applicant to put an end to their relationship, and after two occasions when he was attacked by the brother and his men, the Applicant became fearful for his life, and in January 2009 he fled India for Hong Kong where he raised a torture claim, but after being informed by a friend that it would be safe to return as his girlfriend had married someone else, the Applicant in October 2010 withdrew his claim and returned to India.

4.Upon returning to his home town, the Applicant however discovered that his girlfriend in fact had not married anybody, and so they secretly resumed their relationship, but one day in early 2011 when he was again threatened by his girlfriend’s brother, the Applicant again became fearful for his life and departed India for China, and from there he later sneaked into Hong Kong and raised his torture claim again with the Immigration Department, and after it was rejected he then sought non-refoulement protection, for which he completed a Supplementary Claim Form on 11 April 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.While being released on recognizance pending the determination of his claim, the Applicant on 14 May 2014 was arrested by police for drug trafficking, for which he was subsequently convicted and sentenced to prison for 8 years and 8 months.        

6.By a Notice of Decision dated 23 April 2018 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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”).

7.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and doubted the credibility of his claim due to his failure to seek protection upon his arrival in Hong Kong until one year later after his arrest, and in any event assessed the level of risk of harm from his girlfriend’s brother upon his return to India as low due to the low intensity and frequency of past ill-treatment from him, that 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 his girlfriend’s brother to locate him.

8.On 14 January 2019 the Applicant lodged an application for the late filing of his appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision which was accepted by the Board, and for which he attended an appeal hearing on 18 November 2019 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 6 January 2020 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found no real intention on the part of his girlfriend’s brother to seriously harm or kill the Applicant other than to put pressure on him to end the relationship, that after all these years it is doubtful that there would still be any adverse interest in him, and that in any event with reasonable internal relocation available for the Applicant to move safely to other areas of India away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.    

10.On 16 March 2020 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 repeated his claim that he cannot go back to his home country because his life is in danger over there, and that he does not agree with the decision but without giving any reason or putting forth any proper ground for his intended challenge. 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.

11.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.

12.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.     

13.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.

14.Furthermore, on 6 January 2021 the Applicant wrote to the court to withdraw his application as he wants to go back to his home country in India.

15.In the premises, and for the reasons given that I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation to withdraw his application and to return to his home country, I therefore accede to his request and accordingly dismiss his leave application.

Dated the 4^th day of March 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