Talwinder Singh v. Torture Claims Appeal Board

HCAL 1445/2021

[2021] HKCFI 3467

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1445 of 2021

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 32-year-old national of India who last entered Hong Kong illegally on 19 August 2012 and was arrested by police on 26 September 2014 for which he was subsequently convicted and sentenced to prison for 15 months.  Upon his discharge from prison and was referred to the Immigration Department for deportation, he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his paternal uncle over a land dispute in his home district.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Malakpur Gurdaspur, Punjab, India.  After leaving school he worked as a farmer on his farmland in his home district which he inherited from his grandfather in 2006, but which was coveted by his paternal uncle who insisted that he was entitled to the land and demanded the Applicant to hand over the title of the land to him, and when the Applicant rejected his demand, his uncle and followers on one occasion beat him with wooden sticks that the Applicant suffered injuries to his legs and arms that he was subsequently hospitalized for two weeks.

3.Upon his discharge from the hospital, the Applicant fled from his home village to take shelter in a relative’s home in a neighboring village for about a year without incidents, and in 2007 he went to Singapore to study a course, and thereafter he travelled to Indonesia, Thailand and Malaysia before coming to Hong Kong in September 2009, but when he was refused entry, he then raised a torture claim with the Immigration Department which he later withdrew in March 2011 and returned to India.

4.The Applicant then remained in India for 2 months until May 2011 when he heard that his uncle was still looking for him everywhere, and so he departed India again for Singapore and then Malaysia and Indonesia before returning to India in October 2011 where he stayed in Mumbai to avoid his uncle, but as he still feared of being located, he departed India on 17 August 2012 for China, and from there he later sneaked into Hong Kong, and upon his subsequent arrest by the police in 2014, he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 22 April 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.Whilst being released on recognizance pending determination of his claim, the Applicant was again arrested by police in November 2019 and January 2020 for various offences for which he was convicted and sentenced to prison for a total period of 15 months.   

6.By a Notice of Decision dated 21 July 2021 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 upon his return to India as low due to the low intensity and frequency of past ill-treatment from him, that it was a private family land 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 uncle to locate him.

8.On 2 August 2021 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 17 September 2021 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 27 September 2021 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board accepted the Applicant’s evidence of a land dispute with his uncle but found no evidence of any state or official involvement in such a private family dispute between them that state/police protection would be available to the Applicant upon his return to India to negate any risk of harm arising therefrom that his claim for non-refoulement protection failed on all applicable grounds.    

10.On 18 October 2021 the Applicant filed his 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 just stated that he is not happy with the decision which is unreasonable but without putting forth any proper ground for his intended challenge, 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 Board or in its decision clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

11.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.

12.In the Applicant’s case, 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 his claim is a private family dispute without state or official involvement that state/police protection would be available upon his return to India, and that it has also been found by the Director to be a localized one and that it is not unreasonable or unsafe for the Applicant 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. 

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 19^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