Inderjit Singh v. Torture Claims Appeal Board

HCAL 1947/2018

[2021] HKCFI 1357

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1947 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 (counsel for) the Applicant in open court / the Applicant being absent 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 46-year-old national of India who last arrived in Hong Kong on 13 April 2007 with permission to remain as a visitor up to 27 April 2007 when he did not depart and instead overstayed and was arrested by police on 24 June 2007. After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his former business partner over some monetary dispute. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Mehmuwal Yousafpur, Jalandhar, Punjab, India. After leaving school he worked as a delivery worker, and in 2004 started a handicrafts business with a partner in his home district.

3.However, one day in June 2006 he broke into a heated argument with his business partner and his partner’s brother over some monetary dispute concerning their business, during which they made death threats against the Applicant.

4.After the quarrel the Applicant found it impossible to continue with their business when they were no longer on good terms, and so he subsequently closed down the business, but one day in October 2006 when he was ambushed and attacked by his former business partner and brother, the Applicant became fearful for his life and fled from his home village to take shelter at his aunt’s place in Chatamali, and when he later heard that his former partner was looking for him everywhere, he therefore departed India in April 2007 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 28 June 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

5.By a Notice of Decision dated 31 October 2014 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Ordinance”) (“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 his former business partner or his brother 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 personal monetary 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 former business partner or his brother to locate him.

7.On 13 November 2014 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but for which he failed to attend the scheduled hearing on 29 September 2015 and without valid or acceptable reason that the Board proceeded to deal with his appeal in his absence and on papers. On 1 December 2016 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board found no reliable evidence of any real risk of harm from his former partner to the Applicant over their private monetary dispute, and that in any event with reasonable internal relocation within India available to him to move safely to other areas away from his home district without any risk of being located by his former partner that his claim for non-refoulement protection failed on all applicable grounds.  

9.On 3 January 2017 the Director on his own initiative invited the Applicant to submit any 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”), and in the absence of any response from the Applicant, the Director by a Notice of Further Decision dated 1 February 2017 rejected his BOR 2 claim.

10.On 20 March 2017 the Applicant lodged an appeal to the Board against the Director’s Further Decision, and although on this occasion his appeal was filed outside the 14-day period of the receipt of the Director’s Further Decision as required by Section 37ZS of the Ordinance, his late notice of appeal was accepted by the Board but which it did not find necessary to conduct any oral hearing, and on 31 August 2018 the Board found in the absence of any additional facts from the Applicant regarding his BOR 2 Risk that he failed to establish his BOR 2 claim and dismissed his appeal, and accordingly it confirmed the Director’s Further Decision.   

11.On 14 September 2018 the Applicant filed his Form 86 for leave to apply for judicial review of this second decision of the Board, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date, nor did he request any oral hearing for his application. As such and in the absence of any error of law or irrationality or procedural unfairness in his process before Board or in its decision being clearly and properly identified by the Applicant, and that on the facts of his own case and in the light of the scope and threshold of a BOR 2 claim where there is simply no room for engaging the BOR 2 ground, 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 earlier decisions 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 13^th day of May 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