Singh Santokh and Another v. Torture Claims Appeal Board

HCAL 2684/2018

[2021] HKCFI 2723

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2684 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 Applicants:

1.The 1^st Applicant (“A1”), a 58-year old national of India together with his younger daughter the 2^nd Applicant (“A2”) now aged 20, his wife and elder daughter arrived in Hong Kong on 17 December 2016 with permission to remain as visitors up to 3 January 2017 when they did not depart and instead overstayed, and on 4 January 2017 they surrendered to the Immigration Department and jointly raised a non-refoulement claim on the basis that if they returned to India they would be harmed or killed by A1’s paternal uncle over his dispute with A1 in refusing to allow him to join as a partner in A1’s garment and mobile phone business. They were subsequently released on recognizance pending the determination of their claim.

2.A1 was born and raised in Punjab, India. After leaving school he ran his own garment and mobile phone business, married his wife and raised a family with his two daughters.

3.In 2015 A1 moved his family to New Delhi where he opened his mobile phone shop. Later in the same year his paternal uncle requested to join his business as a partner but was refused by A1 as he preferred to run his business on his own, but his uncle became furious over his refusal and sent a gangster associate to threaten him, and after one occasion when he was beaten by the gangster and his men with hockey sticks who also vandalized his shop, A1 fled to Mumbai to avoid further threats, but when the gangsters later came to his home looking for him and threatened his wife and daughters, A1 decided that it was no longer safe for him and his family to remain in India, and so he closed down his business and on 17 December 2016 departed with his family for Hong Kong where they subsequently overstayed and raised their non-refoulement claim for protection, for which they jointly completed a Non-refoulement Claim Form (“NCF”) on 31 October 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

4.By a Notice of Decision dated 29 November 2017 the Director of Immigration (“Director”) rejected the claim of A1 and his family on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of their 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”).

5.In his decision the Director took into account of all the relevant circumstances of the claim of A1 and his family and found no substantial grounds for believing that the perceived fear of A1 and his family is real and foreseeable upon their return to India due to the absence of or low intensity and frequency of past ill-treatment from A1’s uncle and his gangster associate, that A1 had since closed down all his business that there was no reason for his uncle to continue to have any further adverse interest in him, that in any event it was a private family dispute between A1 and his uncle without any official involvement that state or police protection would be available to A1 and his family 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 A1 as an able-bodied adult with working experience to move with his family to other part of India away from his home district in large cities such as Mumbai where he had stayed before without incidents and where it would be difficult if not impossible for his uncle to locate A1 or his family.

6.On 8 December 2017 A1 and his family lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which A1 and his two daughters attended an oral hearing on 10 October 2018 before the Board during which A1 gave evidence and answered questions raised of their claim by the Adjudicator for the Board. At the hearing A1 also confirmed that his wife had died of heart problem on 9 August 2018 in Hong Kong and hence her claim was considered as closed by the Board. On 22 November 2018 the appeal of A1 and his daughters was dismissed by the Board which also confirmed the decision of the Director.

7.In its decision the Board found serious doubts over the credibility of their claim in that A1 demonstrated little if any understanding of the details of his claimed business proposal made by his uncle which raised such doubts about the truth of the central aspects of his claim that it was not satisfied that he or his daughters would face any real risk of harm from his uncle or anyone in India for any of the reasons claimed, especially when his claimed business even if true had since been closed down for years that there is simply no reason to expect any further adverse interest in any of the Applicants from the uncle or his gangster associate that the claim of A1 and his daughters for non-refoulement protection failed on all applicable grounds.     

8.On 27 November 2018 A1 and A2 but without the elder daughter jointly filed their Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in their Form, and in A1’s supporting affirmation of the same date he just repeated their claim that they cannot go back to their home country as their lives would still be in danger but without putting forth any proper or viable ground for their intended challenge, nor did they request any oral hearing for their application. As such and in the absence of any error of law or irrationality or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis for their intended challenge.

9.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.

10.In the Applicants’ case, the Board rejected their claim essentially on its adverse finding on A1’s credibility for the thorough and detailed analysis and reasoning set out in paragraphs 22 – 53 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of their claim, and in the absence of any error of law or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis to challenge the finding of the Board.  

11.Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm in the Applicants’ claim if true is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of India, a decision also confirmed by the Board, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

12.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 Applicants’ claim.

13.For these reasons I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, and I accordingly refuse their leave application.

Dated the 10^th 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