Gurvinder Singh v. Torture Claims Appeal Board

HCAL 1425/2020

[2021] HKCFI 3289

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1425 of 2020

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 30-year-old national of India who entered Hong Kong illegally in early August 2015 and surrendered to the Immigration Department on 5 August 2015 when he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his step-mother and her brother over a land dispute in his home village.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Chhoti, District Sri Ganganagar, State Rajasthan, India.  After leaving school he worked as a farmer in his farmland given to him by his father.

3.After the passing of his mother, his father married his second wife, and in 2012 she started to demand that the Applicant should give his farmland to her brother or her son, and when the Applicant refused, she tried to poison him while her brother threatened to kill him, and after one incident in 2014 when he was attacked by some men sent by his step-mother’s brother with hockey sticks, the Applicant became fearful for his life and so on 22 July 2015 he departed India 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 5 September 2016 with legal representation from the Duty Lawyer Service (“DLS”) but failed to attend any screening interviews before an immigration officer due to alleged medical reason.

4.By a Notice of Decision dated 31 October 2016 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”).

5.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 step-mother and her brother 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 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 2.9 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 Mumbai where it would be difficult if not impossible for him to be located.

6.On 11 November 2016 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the decision of the Director, but before his appeal could be processed by the Board, the Applicant on 18 February 2019 wrote to the Board requesting to withdraw his appeal as his problem had been resolved, that he fully understood the consequences of the withdrawal, and that he just wanted to return to his home country.  On 20 February 2019 the Board allowed the Applicant’s appeal to be withdrawn upon being satisfied that his request was freely sought, that he fully understood the consequences of the withdrawal, and that he had good reason for his proposed withdrawal.  The Board accordingly also confirmed the Director’s decision.

7.However, more than 1 year later on 9 July 2020 the Applicant filed a 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, and in his supporting affirmation of the same date he merely stated that he is not satisfied with the decision as his life is not safe in his home country that he cannot return until his problem has been solved but without putting forth any proper ground for his intended challenge.

8.The fact is that the Board allowed the Applicant to withdraw his appeal at his own written request upon being satisfied that it was made of his own free will and with full knowledge of the consequences of the withdrawal.  As such and in the absence of any evidence from the Applicant that for some legitimate reasons that he did not validly withdraw his appeal, or 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.

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 Applicant’s case, in fact the Director has also correctly established 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.

11.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 respective decisions in dealing with the Applicant’s claim.

12.Furthermore, the Applicant recently on 4 August 2021 filed an affirmation requesting to withdraw his application as all his problems have been solved in India that he wants to return to his home country.  

13.In the premises, and as I am not satisfied for the reasons given 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 that he wants 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