Gurpreet Singh v. Torture Claims Appeal Board

HCAL 694/2018

[2021] HKCFI 1583

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 694 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:

1.  the application for leave to apply for Judicial Review be reinstated; and

2.  leave to apply for judicial review be refused.

Observations for the Applicant:

1.The Applicant is a 28-year-old national of India who entered Hong Kong illegally on 7 July 2015 and was arrested by the police on the same 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 his paternal uncles over some land dispute in his home village. He was subsequently being released on recognizance pending the determination of his claim. 

2.The Applicant was born and raised in Village Bhadson, Patiala, Punjab, India. After leaving school he worked in various jobs in his home district where his father passed away in 2007.

3.In 2013 his grandfather passed away leaving some farmland in their home village as part of his estate, and of which the Applicant stood to inherit his father’s share as his male descendant, but his entitlement was disputed by his 3 paternal uncles who demanded that he should give up his interest in the land, and when the Applicant refused, they then sent men to threaten and harass him that his mother eventually became concerned for his safety and advised him to leave India, and so on 28 June 2015 he departed for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 25 April 2017 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 22 June 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 and non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) 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 all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that the claimed risk of harm from his paternal uncles upon his return to India is real and foreseeable due to the low intensity and frequency of past ill-treatment from them, that it was a private family dispute over land between them without any official involvement that state 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 man adult with working experience to move to other areas away from his home district in large cities such as Delhi where it would be difficult if not impossible for his uncles to locate him.   

6.On 3 July 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 23 February 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 13 April 2018 his appeal was dismissed by the Board which also confirmed the Director’s decision.

7.In its decision the Board found the Applicant’s evidence as to his claim vague, evasive and contradictory that it doubted the credibility thereof, and that in any event with reasonable internal relocation available upon his return to India for him to move safely to other area away from his home district without any risk of being located by his uncles that his claim for non-refoulement protection failed on all applicable grounds.   

8.On 20 April 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  Lack of legal representation in his appeal before the Board; and

(2)  Lack of language assistance for his BOR 2 claim as he does not read or write English and hence was unable to present his BOR 2 claim to the Director.

9.Before his application could be dealt with, the Applicant on 4 March 2019 wrote to court to request to withdraw his application, and accordingly on 8 March 2019 his application was treated as withdrawn.

10.However, on 26 February 2021 the Applicant issued a summons requesting to “re-open” his application as his problem in his home country still exists. As the substance of his application has never been formally determined, and in order to save time and resources, I acceded to his request and re-instated his application for hearing, during which he confirmed that he relies on the same grounds as set out in his affirmation as above.   

11.For his complaint in Ground (1) of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 367, and Re Zafar Muazam [2018] HKCA 176.

12.The Applicant already had the benefit of legal representation in presenting his case to the Director under all the applicable grounds, and was also able to testify and make representation in his appeal hearing before the Board and to answer questions put to him by the Adjudicator without difficulty and with the assistance of an interpreter. In the circumstances I do not find anything amiss arising from the lack of legal representation in his appeal process before the Board, and I do not think this ground reasonably arguable for his intended challenge.

13.As for his complaint under Ground (2) of not being provided with language assistance in presenting his BOR 2 claim to the Director, the record clearly shows that the Applicant’s BOR 2 claim was presented together with all other applicable grounds to the Director during his first-tier screening process when he was then also legally represented by DLS, and that during his screening interviews before an immigration officer he was also assisted by an interpreter. In any event even on the basis of the facts of his own case that his claim clearly did not engage the BOR 2 ground. As such there is simply no basis or merits in this complain of the Applicant.

14.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an 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 risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and 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 properly and clearly identified by the Applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see 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.

15.The fact is that it has been established by both the Director and the Board in their decisions that the risk of harm in the Applicant’s 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.     

16.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.

17.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 2^nd day of June 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