Karnail Singh v. Torture Claims Appeal Board

HCAL 842/2019

[2021] HKCFI 3552

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 842 of 2019

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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 26-year-old national of India who last arrived in Hong Kong on 6 March 2014 with permission to remain as a visitor up to 20 March 2014 when he did not depart and instead overstayed until 21 July 2014 when he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by certain local gangsters for having reported on their illegal activities 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 Kirpind Jammu, Jammu Kashmir, India.  Sometime in late 2013 he saw some local gangsters conducting illegal activities including selling weapons and illegal drugs, and after telling his father about them, his father made a report to the local police, and as a result one of those gangsters was subsequently arrested.

3.However, after that gangster had made bail and was released, he and his men located the Applicant’s father and shot him on his knee with his pistol and warned him not to mess with his business again.  Thereafter the Applicant brought his father to the hospital for emergency medical treatment, and since then his father needed a walking stick to walk.

4.Sometime thereafter the gangsters again came to the Applicant’s home and punched and kicked him all over his body, and gave him the same warning not to mess with their business or else he would be killed.

5.After the beating the Applicant became fearful for his life, and on his father’s advice he fled from his home village to take shelter in a friend’s place in Jammu, and on 2 March 2014 he departed India for Macau before travelling to Hong Kong where he overstayed and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 16 July 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).    

6.Whilst being released on recognizance pending the determination of his claim, the Applicant was arrested by police on 14 June 2017 for the offences of theft and wounding and was subsequently convicted and sentenced to prison.          

7.By a Notice of Decision dated 31 July 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”).

8.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 those local gangsters upon his return to as low due to the low intensity and frequency of past ill-treatment from them, that after all these years since his departure from the country that it is doubtful that they would still have any adverse interest in him, that in the absence of 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 young adult 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 those gangsters to locate him.

9.On 6 August 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 8 November 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 18 February 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board accepted the Applicant’s claim of fear of harm from the local gangsters over his report of their illegal activities to the authory, but found in the absence of any evidence of official involvement that state/police protection would be available to him upon his return to India as well as reasonable internal relocation for him to safely move to other areas away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

11.On 27 March 2019 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 does not agree with the decision as he cannot go back to his home country where his life would still be in danger 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 being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis 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.In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in his 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.  

14.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.

15.Furthermore, the Applicant recently on 12 November 2021 filed an affirmation to request to withdraw his application as his problem has been solved and that he wants to return to his home country.

16.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 given his latest confirmation that his problem at home has been solved so that he can return to India, I accordingly dismiss his leave application.

Dated the 24^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