Dhamender Singh v. Torture Claims Appeal Board

HCAL 847/2018

[2021] HKCFI 735

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 847 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 30-year-old national of India who arrived in Hong Kong on 14 October 2014 with permission to remain as a visitor up to 19 October 2014 when he did not depart and instead overstayed, and on 24 October 2014 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 over a 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 Village Jhiverhedi, Haryana, India. After leaving school he worked as a welder before going to Iraq in 2013 to work as a waiter.

3.In 2013 his grandfather passed away leaving all his land to the Applicant’s uncle which caused resentments in the Applicant’s father who kept demanding to share in those land but refused by the Applicant’s uncle which then led to numerous conflicts between the two families.

4.In April 2014 the Applicant returned from Iraq, and when he learnt about his father’s dispute with his uncle, he went to see his uncle in June 2014 to try to resolve the issue, but left after his uncle refused to meet him.

5.One day in September 2014 while he was on his motorbike on his way to meet a friend, his bike was struck from behind by another vehicle and crashed, and as a result he was thrown to the ground and lost his consciousness, and was subsequently taken to the hospital by some passer-by.

6.Upon his discharge from the hospital, the Applicant learnt that no report had been made to the police as no one had witnessed the incident, but as he suspected that it might be someone sent by his uncle to stop him from interfering in the land dispute, he became fearful for his safety, and as his uncle was powerful and influential in the village with political connections, he therefore fled to Delhi, and from there he departed on 13 October 2014 for Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 4 August 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

7.By a Notice of Decision dated 6 September 2017 the Director of Immigration (“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”).

8.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 there will be any real and substantial risk of him being harmed or killed by his uncle upon his return to India due to the absence of any past ill-treatment from him or his family, that his fear of threats from his uncle is based entirely on his own suspicion and speculation, that in any event his problem with his uncle was a private family land 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 3 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 part of India away from his home district in large cities such as Delhi where it would be difficult if not impossible for his uncle to locate him.

9.On 14 September 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 28 March 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 10 May 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board accepted the Applicant’s claim of a land dispute between his father and his uncle but found no reliable or objective evidence of any real threats or harm directed against him from his uncle and that it was just his own suspicion and speculation that his uncle had anything to do with the motorbike incident, and that in any event with state/police protection available 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 his uncle that his claim for non-refoulement protection failed on all applicable grounds.   

11.On 16 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 stated that he disagreed with the Board’s decision as it disregarded the danger and threats that he would face in his home country without providing any details or particulars or elaborations how it was so, nor did he put forward any other proper ground for his intended challenge. 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.

12.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.

13.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.     

14.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.

15.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 19^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