Gurjant Singh v. Torture Claims Appeal Board

HCAL 727/2019

[2021] HKCFI 1439

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 727 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 24-year-old national of India who arrived in Hong Kong on 27 December 2016 with permission to remain as a visitor up to 10 January 2017 when he did not depart and instead overstayed, and on 12 January 2017 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 district. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Uggar Aulakh, District Amritsar, Punjab, India. After leaving school he assisted his father in his father’s farmland inherited from his grandfather but which had always been coveted by his uncle who was unhappy with his share of the inheritance.

3.One day on 28 April 2014 while the Applicant and his father were working on their farmland, his uncle and his men came armed with a pistol and sticks to demand that his father handed over the land, and when his father refused, his uncle shot his father dead with his pistol, while his men attacked the Applicant with sticks until other villagers intervened and brought the Applicant to the local hospital for treatment.

4.After his discharge from the hospital, the Applicant reported the incident to the police, but when the police refused to launch any investigation, and when his uncle continued to threaten him to hand over the farmland, the Applicant fled from his home village to take shelter in his cousin’s place in Jalandhar, but when he heard that his uncle and his followers were looking for him everywhere, he therefore departed India on 26 December 2016 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 20 April 2018 and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

5.By a Notice of Decision dated 12 June 2018 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”).

6.In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that he would be harmed or killed by his uncle upon his return to India due to the low intensity and frequency of past ill-treatment from his uncle, that in the absence of any reliable evidence that his father had indeed been killed by his uncle or of his alleged refusal of the police to investigate the matter that it is doubtful that his uncle had any real intention to harm or kill the Applicant, 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 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 parts 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.

7.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 2 November 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 6 March 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found the Applicant’s claim that the Indian police refused to investigate the murder of his father by his uncle incredible on the basis of relevant COI and did not accept his evidence as such in the absence of any independent evidence to corroborate his bare assertions, and found in any event that it was a private land dispute between him and his uncle without any official involvement that state/police protection would be available to the Applicant upon his return to India as well as reasonable internal relocation for him to move safely to other areas 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.    

9.On 15 March 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 he still has problem in his home country that he cannot return without putting forward any proper ground for his intended challenge, 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 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.

10.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.

11.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 parts 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.     

12.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 Applicant filed an affirmation requesting to “close” his application without providing any further explanation or reason.

14.In the premises, and as I am not satisfied for the reasons given that there is any prospect of success in the Applicant’s intended application for judicial review, and taking into account the Applicant’s latest request, I accordingly dismiss his leave application.

Dated the 20^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