Jagdeep Singh v. Torture Claims Appeal Board

HCAL 457/2020

[2021] HKCFI 557

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 457 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 27-year-old national of India who arrived in Hong Kong on 30 October 2016 with permission to remain as a visitor up to 13 November 2016 when he did not depart and instead overstayed, and on 15 November 2016 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 his uncle and/or his cousins over some land dispute in his home village.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Punjab, India. After leaving school he worked in various jobs and remained living in his family house and farmland which were however coveted by his uncle and his cousins who frequently demanded that he and his mother to hand over the properties to them, and after several attacks on him by his cousins, the Applicant on his mother’s advice moved to Delhi, and when he was attacked there by his cousins, he then fled to Mumbai where he was again tracked down and attacked by his cousins, he felt it was no longer safe to remain in India, and so in October 2016 he departed for Thailand, and from there he travelled to Hong Kong where he eventually overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 12 November 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.     

3.By a Notice of Decision dated 9 January 2019 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”).

4.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 his uncle or cousins upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that it was a private family dispute between them over some land in their home village 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 young man with working experience to move to other areas of India away from his home district in large cities such as Delhi or Mumbai where it would be difficult if not impossible for his uncles or cousins to locate him.

5.On 22 January 2019 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 17 January 2020 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 6 March 2020 his appeal was dismissed by the Board.

6.In its decision the Board found confusions and contradictions in the Applicant’s evidence as to his claim of dispute with his uncle/cousins over the farmland in his home village as according even to his own evidence that his mother and his younger brother are still safely occupying the farmland in India without any disturbances or harassments from his uncle or cousins, and that in any event it was a private family dispute over land without any official involvement that state/police protection would be available to the Applicant upon his return to India as well as reasonable relocation for him to move safely to other areas away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.   

7.On 19 March 2020 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and put forth the following grounds for his intended challenge:

(1)  that the Director and the Adjudicator reached their decisions wrongly in assessing the Applicant’s non-refoulement claim and that their decisions were not reasonable or fair in failing to recognize that the Applicant may face the risk of extra-judicial killings if deported back to his home country;

(2)  that the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in the Applicant’s case which had led to an unfair outcome of rejecting his non-refoulement claim;

(3)  that the Director failed to consider the fact that the Applicant was tortured at the behest of the state law enforcement agencies that the state would be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(4)  that the Adjudicator acted unreasonable and was procedurally unfair by placing too much reliance on COI but failed to take the Applicant’s personal background and experience into account;

(5)  that the Director had listed relevant COI which support the aversions that the police in the Applicant’s country would not be able to protect but failed to consider or give enough weight to those evidence and ruled otherwise;

(6)  that the Director failed to take into account the fact that corruption and incompetency of the administration in the Applicant’s country is still a very serious problem of which various human rights organizations have complied reports which stated testament to the Applicant’s assertions;

(7)  that the Director failed to attain the high standard of fairness required by the Wednesbury test in the decision which should be considered unreasonable in the scope of public law;

(8)  that the Adjudicator was procedurally improper and/or unfair when assessing whether to accept explanations provided by the Applicant and unreasonably required him to respond to questions that he was not in a position to offer any response and also failed to take account the nexus of political parties and official corruption which exist in the Applicant’s country making persecution effectively persecution by the State; and

(9)  that the Adjudicator made a ruling to dismiss the Applicant’s appeal/petition based on findings which the Adjudicator ought to allow the appeal thus making the decision irrational.    

8.All these grounds however appear to me to have been just copied from some pro forma statements commonly used in this type of applications but are wholly irrelevant to the Applicant’s claim even based on his own case at the highest, or are just broad and vague assertions of his containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the Adjudicator had erred in their decisions, or in what way was state acquiescence or police corruption relevant to his case, or how did they fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or in what way were their decisions unfair or unreasonable, or how did the Director or the Adjudicator act procedurally unfair or fail to apply high standards of fairness in their consideration of his claim.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant. As such I do not find any of them reasonably arguable, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Director or the Board or in their decisions being clearly and properly identified by him, nor do I find 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 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.      

11.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.

12.Furthermore, on 22 January 2021 the Applicant filed an affirmation to request to “close” his case because he wants to go back to his home country.

13.In the premises, and for the reasons given, 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 of his wish to return to his home country, I accordingly accede to his request and 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