Beant Singh v. Torture Claims Appeal Board

HCAL 2027/2018

[2021] HKCFI 2275

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2027 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 34-year-old national of India who arrived in Hong Kong on 11 March 2014 with permission to remain as a visitor up to 25 March 2014 when he did not depart and instead overstayed in Hong Kong, and on 10 April 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 girlfriend’s family who were against their relationship. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Sarawan, Tehsil Jaiton, District Faridkot, Punjab, India. After leaving school he worked in a mobile phone shop in his home village.

3.In 2013 he started dating his girlfriend from a neighboring village where her father was an influential man with political connections, but one day in late 2013 when her family learnt of their relationship, they disapproved of the same due to the Applicant’s lower caste, and demanded him to put an end to the relationship.

4.After one occasion in December 2013 when he was beaten by men sent by his girlfriend’s father, the Applicant fled to another village to take shelter in an aunt’s place, and when he heard that his girlfriend’s family had sent men to look for him everywhere, he felt it was no longer safe to remain in India, and so on 7 March 2014 he departed for China, and from there he later travelled to Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 11 July 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 12 March 2015 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 (“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 found no substantial grounds for believing that the claimed risk of harm from his girlfriend’s family upon his return to India would materialize due to the low intensity and frequency of past ill-treatment from them, that he had stopped seeing his girlfriend since his departure that it is doubtful that her family would still have any adverse interest in him after all these years, that in any event it was a private personal 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 3.2 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 New Delhi where it would be difficult if not impossible for his girlfriend’s family to locate him.

7.By a Notice of Further Decision dated 8 June 2017 the Director again rejected the Applicant’s claim in the absence of any response from him to an earlier invitation to submit 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”).

8.By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“Board”) against the earlier decision of the Director, the notice of which was filed on 25 March 2015, and for which he attended an oral hearing on 8 August 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 21 September 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.In its decision the Board found numerous and significant inconsistencies and discrepancies in the Applicant’s evidence that raised serious concerns about the truthfulness of his account of events that led to his departure from India and his unwillingness to return there that it did not accept that he had been threatened or assaulted by his girlfriend’s family as alleged, and concluded that he has fabricated his claim in order to support his application for non-refoulement protection and that he does not face a real chance of harm from anyone upon his return to India that his claim failed on all applicable grounds.   

10.On 26 September 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, while in his supporting affirmation of the same date and at the hearing of his application, he just stated that he is not satisfied with the decision as he still has problem in his home country that he should be allowed to remain in Hong Kong but without putting forth any proper ground for his intended challenge.

11.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.

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 Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 52 – 73 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 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.  

14.Furthermore, the fact is that it has been established by the Director in his decision 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 part 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.     

15.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.

16.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 11^th day of August 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