Jaswinder Singh v. Torture Claims Appeal Board

HCAL 947/2018

[2021] HKCFI 668

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 947 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 oral submissions by the Applicant in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 39-year-old national of India who arrived in Hong Kong on 7 April 2014 with permission to remain as a visitor up to 21 April 2014 when he did not depart and instead overstayed and was arrested by police on the following day.  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 wealthy land owner in his village over some electricity installation dispute.  He was subsequently released on recognizance pending the determination of his claim. 

2.The Applicant was born and raised in Village Heran, PS Nakodar, Jalandhar, Punjab, India.  After leaving school he worked in his family’s farming in his home village.

3.In 2000 a wealthy land owner Ratan wanted to build on the land next to the Applicant’s home by installing electricity poles across their land which led to a violent dispute between the two families and a subsequent court action brought by the Applicant’s father against Ratan who then made threats against him and his family.

4.After several incidents when the Applicant’s father was assaulted by Ratan’s men and one day in late 2004 when he suddenly disappeared without a trace, and when the police was unable to help, the Applicant decided to carry on with his father’s court case against Ratan who then turned his threats and harassments against the Applicant, and then after several attacks by Ratan’s men, the Applicant became fearful for his life, and so in April 2014 he departed India 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 (“NCF”) on 2 September 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).       

5.By a Notice of Decision dated 27 January 2016 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 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 assessed the level of risk of harm from Ratan or his men upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that Ratan’s intention was to put pressure on the Applicant to stop his court action against him which after the Applicant’s absence all these years would have collapsed and hence would not cause any concern to Ratan or any reason for Ratan to make any further threats to the Applicant, that their problem was a private personal dispute 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 2.9 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 Ratan to locate him.

7.By a Notice of Further Decision dated 5 June 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 4 February 2016, and for which he attended an oral hearing on 29 November 2017 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board.  On 16 May 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 story unreliable but plausible, but that after all these years that it is unlikely that the court action would have survived in the absence of the Applicant or his father and hence no further reason for Ratan to continue with his hostilities against the Applicant, and that in any event with reasonable internal relocation within India available for the Applicant to move safely to other area away from his home district without any further risk of harm from Ratan that his claim for non-refoulement protection failed on all applicable grounds.     

10.On 28 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 merely attached copies of the decision and all the documents in his appeal bundle without putting forward any ground for his intended challenge, nor was he able to do so at the hearing of his application other than just repeating his claim that he cannot go back to his home country as his problem is still there, 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 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.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. 

14.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 12^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