Harjinder Singh v. Torture Claims Appeal Board

HCAL 228/2017

[2021] HKCFI 2592

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 228 of 2017

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 31-year-old national of India who arrived in Hong Kong on 13 February 2014 with permission to remain as a visitor up to 27 February 2014 when he did not depart and instead overstayed, and on 3 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 certain local supporters of the political party Indian National Congress (“INC”) as he supported their rival Shiromani Akali Dal (Amritsar) Party (“SAD-Mann”). He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Chak Bamu, Tehsil Dasuya, District Hoshiarpur, Punjab, India. After leaving school he served in the Army for two years before returning to his home village where he supported SAD-Mann and regularly attended their meetings and rallies.

3.One day in June 2013 while he and several of his fellow SAD-Mann supporters were carrying out election campaign activities in his home village, they were confronted by a group of INC supporters which led to a fight between them using wooden sticks until intervened by other villagers.

4.Thereafter the Applicant heard that one of the INC supporters had died from the fight, and after he was told by his father that police were looking for him for investigation, the Applicant fled to Chandigarh, and when he heard that the INC people were also looking for him to kill him for revenge, he therefore fled to Kolkata, and from there he departed India on 12 February 2014 for Hong Kong where he subsequent overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 27 August 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). 

5.By a Notice of Decision dated 30 December 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 assessed the level of risk of harm from those local INC supporters upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that that there was no reliable evidence or reason for those INC supporters to specifically target him or to have any further adverse interest in him after all these years since his departure, that 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”) 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 those local INC people to locate him.

7.By a Notice of Further Decision dated 8 March 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 13 January 2016, and for which he attended an oral hearing on 14 March 2017 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 18 April 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.In its decision the Board found inconsistencies and discrepancies in the evidence of the Applicant that it doubted the credibility of his claim, and found in any event that reasonable internal relocation would be available for him to move safely to other area of India without any risk of being located by those local INC supporters that his claim for non-refoulement protection failed on all applicable grounds.   

10.On 24 May 2017 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 various grounds for his intended challenge which can essentially be summarized as follows:

(1)  that the Board’s decision to reject his appeal was procedurally unfair in failing to accept that he had never received the letter from the Director for him to submit additional facts relevant to his BOR 2 Claim and that he was unrepresented and could not understand the complicated issues of his claim;

(2)  that the Board’s approach to the COI was selective and failed to address the negative aspects about the corrupt police in India which supported his claim;

(3)  that the Board failed to appreciate and consider the fact that a lot of things have happened and changed as to the political situation in India that his family had been attacked since his departure of India which the Board failed to carry out sufficient research and inquiry into the COI conditions;

(4)  that the Board failed to take account of or place sufficient weight on highly relevant information as found in the limited COI research cited in the decision which were overwhelmingly in the Applicant’s favour and supportive of his non-refoulement claim and as a result it arrived at a decision in dismissing his claim which was unreasonable; and

(5)  that the Board failed to evaluate and make a finding of fact as to whether there exists in India a constant pattern of gross flagrant abuse in arriving at its decision which was unreasonable on all grounds.  

11.These are however all just broad and vague assertions of the Applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the Adjudicator had erred in the decision, or in what way did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or in what way was the decision unfair or unreasonable. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant. As such 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 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 respective 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, 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.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.Furthermore, on 16 August 2021 the Applicant filed an affirmation to request to withdraw his leave application but without providing any reason for withdrawal.

16.In the premises, and for the reasons already given, 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 confirmation to withdraw his application, I accordingly dismiss his leave application.

Dated the 2^nd day of September 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