Ranbir Singh v. Torture Claims Appeal Board

HCAL 479/2019

[2021] HKCFI 1058

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 479 of 2019

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 30-year-old national of India who entered Hong Kong illegally on 24 May 2013 and was arrested by police on 21 June 2013. 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 the local supporters of the political party Congress Party (“CP”) for leaving their party to join their rival Shiromani Akali Dal (“SAD”), and after he later withdrew his torture claim, he then raised a non-refoulement claim for 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 Bhagupur, District Tarn Taran, Punjab, India. After leaving school he became a CP supporter under the influence of the village head of his home village, and assisted in their election campaigns by putting up posters in the village.

3.However, during the 2012 general election, he quitted CP after an argument with his village head, and joined their rival SAD, but several weeks later some local CP supporters led by the village head started to harass and threaten him, demanding him to leave SAD to re-join CP, but when he refused, they attacked him with wooden sticks and clubs on two occasions causing injuries which required medical treatments at the local hospital, and when he felt that the local police were not helping due to the influence of the village head, he therefore departed from India on 18 March 2013 for China, and from there he later sneaked into Hong Kong, and upon his subsequent arrest by the police, he raised his torture claim but which he later withdrew and instead sought non-refoulement protection under the Unified Screening Mechanism (“USM”), for which he completed a Supplementary Claim Form (“SCF”) on 8 September 2016 and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

4.By a Notice of Decision dated 29 December 2016 the Director of Immigration (“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”).

5.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 perceived fear of harm from those local CP supporters is real and foreseeable upon his return to India due to the low intensity and frequency of past ill-treatment from them, that there is no evidence or reason for them to specifically target him given his low position in the party, that in any event in the absence of 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”) shows 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 young adult to move to other parts of India away from his home district in large cities such as Mumbai where it would be difficult if not impossible for those CP supporters to locate him.

6.On 11 January 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 25 October 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 6 December 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

7.In its decision the Board found the Applicant to have given conflicting and inconsistent evidence in his claim before the Board which was totally different from the one given to the Director for which he was unable to give a reasonable explanation that it did not find him to be a credible witness, and concluded that he has fabricated and concocted his evidence to advance a claim for non-refoulement protection that his such claim failed on all applicable grounds.  

8.On 19 February 2019 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 his life is still in danger in his home country and that he does not agree with the Board’s decision without putting forward any proper ground 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 Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 39 – 48 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, 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 to challenge the finding of the Board.  

11.The fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim if true is a localized one and that it is not unreasonable or unsafe for him to relocate to other parts of India, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

12.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.

13.Furthermore, on 2 March 2021 the court received a letter from the Applicant requesting to withdraw his leave application.  

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 in view of his latest wish to withdraw his application, I accede to his request and accordingly dismiss his leave application.

Dated the 20^th day of April 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