Sanjiv Singh v. Torture Claims Appeal Board and Another

HCAL 107/2019

[2021] HKCFI 3382

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 107 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:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 50-year-old national of India who entered Hong Kong illegally on 30 July 2015 and was arrested by police on the same day.  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 brother over a family property dispute in their home district.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Jalandhar, Punjab, India.  After leaving school he worked as a mechanic, got married and raised a family of 4 children in his home district until 2003 when he went to work in Abu Dhabi as a construction worker.

3.Later in 2003 his father passed away leaving behind in his estate a property in their home district which had been occupied by the Applicant’s elder brother and his family.

4.In 2007 the Applicant returned to India and raised issue with his brother over his share in the property, but when his brother refused to allow him to have any share in it, and even made threats against him and his family on several occasions, the Applicant became concerned for his safety, and so on 24 July 2015 he departed India with his wife for Hong Kong, but when they were refused entry by the Hong Kong Immigration Department, they then travelled to China, and from there his wife returned to India, while the Applicant on 30 July 2015 sneaked into Hong Kong, and after he was arrested by police, he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 9 November 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 27 December 2017 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”).

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 there would be any real risk of him being harmed or killed by his brother upon his return to India due to the low intensity and frequency of past ill-treatment from him, that it was a private family property dispute between them 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 Delhi where it would be difficult if not impossible for his brother to locate him.

7.On 12 January 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 3 December 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 8 January 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence as to his claim of threats from his brother over the propertydispute in his home district which casted doubt on his overall credibility that it concluded that he was not a witness of truth, and that there was no evidence of him ever being harmed by his brother or that his brother would have any reason to harm him or the ability to locate him if he were to relocate to other part of India away from his home district that his claim for non-refoulement protection failed on all applicable grounds.   

9.On 11 January 2019 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he just stated that he rejects their decisions as they disregarded the danger and threats that he would face in his home country if deported but without providing any details or particulars or elaboration as to how they did so, nor did he request any oral hearing for his application.  As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

10.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 ChamindaPushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

11.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 44 – 60 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.  

12.Furthermore, 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 if true 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. 

13.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.

14.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 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