Kulwinder Singh v. Torture Claims Appeal Board

HCAL 108/2019

[2021] HKCFI 3283

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 108 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 43-year-old national of India who entered Hong Kong illegally on 7 May 2016 and was arrested by police on 15 May 2016.  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 uncle and his sons over a land dispute with his family in his home district.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Amritsar, Punjab, India.  After leaving school he worked as a farmer on his father’s land inherited from his grandfather who also distributed the rest of his land equally amongst his 7 children in the home district before his death.

3.However, one of the Applicant’s uncles was not satisfied with his share of the land and frequently demanded that additional land be given to him from the share of the Applicant’s father which had caused hostilities and conflicts between the two families.

4.One day in December 2016 his uncle and his sons came to the Applicant’s home to again raise his demand, and when they could only find the Applicant’s mother in the house, they assaulted her before they left.

5.As the local police treated the incident as a private dispute in the Applicant’s family and refused to take any action against his uncle, and after another incident when the Applicant was assaulted by his uncle and his sons, and when he later also heard that his uncle’s son had planned to kill him, the Applicant became fearful for his life and therefore departed India for China, and from there he later sneaked into Hong Kong, and upon his subsequent arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 18 December 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 25 January 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”).

7.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 his uncle and his sons upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that it was a private family dispute over land in his home district 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 uncle and his sons to locate him.

8.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 24 July 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 25 October 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found no good reason for the Applicant’s alleged fear of harm from his uncle and sons given his concession at his appeal hearing that the disputed land had in fact been taken over by his uncle and registered in his uncle’s name that there was no further cause or reason for his uncle to harm the Applicant or his family, and that in any event it was a private family dispute over land in his home district 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 area without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.    

10.On 11 January 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forth the following grounds for his intended challenge:

(1)   Procedural unfairness in that the Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirement;

(2) Procedural unfairness in that the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(3)   Procedural unfairness in that the Board’s decisions to refuse the Applicant’s appeal were unreasonable or irrational in the public law sense or are a result of procedural errors or unfairness;

(4)   Procedural unfairness in the Board’s failure to meet the greater care and duty owed to a self-represented claimant;

(5)   That the Board had significantly relied on the source of news not officially recognized or were simply hearsay or outdated resulting in making groundless speculations that it would be safe for the Applicant to return to his country of origin; and

(6)   Procedural unfairness to the Applicant being provided with the hearing bundle just about 6 days before his appeal hearing with the majority of the documents in English including the Director’s submissions that thereby gave the Applicant insufficient time to prepare for the hearing due to his limited skills in English and being unrepresented for his appeal.  

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 Adjudicator had erred in the decision, or how did the Adjudicator act in a procedurally unfair manner or fail to take into account of relevant COI or rely on which source of news that were not officially recognized or were outdated, or in what way was the Board’s decision unreasonable or irrational in the public law sense, or how did the Board fail to meet the duty of care to the Applicant as a self-represented claimant.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable 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.The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided to him only a few days before his appeal hearing before the Board which consisted of the Director’s skeleton submissions and other documents all of which were in English that thereby gave him insufficient time to prepare for his appeal.

14.Even if it is true that the hearing bundle indeed came to him late as alleged, and the Applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his NCF, records of his screening interviews and the Director’s decision should be well familiar to the Applicant as they had earlier all been made available to him when he had legal representation from DLS, whilst his NCF was completed on his own instructions with legal assistance, and that at his oral hearing he never raised any issue or requested the Adjudicator for further time to enable him to better prepare for his appeal. Accordingly, I do not find anything amiss arising from the hearing bundle for the Applicant in his appeal before the Board or that this ground is reasonably arguable for his intended challenge either.  

15.The fact is that it has been established by both the Director and the Board in their respective 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 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.

16.In the circumstances 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.Furthermore, the Applicant recently on 11 October 2021 filed an affirmation expressing his wish to “close” his case as all his problems have been solved and that he wants to go back to his home country.

18.In the premises, and as I am not for the reasons given satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation that all his problems have now been resolved and that he wants to close his case and to return to his home country, I accede to his request and accordingly dismiss his leave application.

Dated the 4^th day of November 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