Dhaliwal Surinder Singh v. Torture Claims Appeal Board

HCAL 1195/2020

[2021] HKCFI 3632

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1195 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 29-year-old national of India who arrived in Hong Kong on 8 March 2015 with permission to remain as a visitor up to 22 March 2015 when he did not depart and instead overstayed, and on 14 April 2015 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 his former girlfriend’s family who objected to their relationship.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in VPO Bhagta, Bathinda, Punjab, India. After leaving school he worked as a welder, mechanic and farmer in his home district.

3.In 2013 he started to date his former girlfriend from the neighboring village, but one day in 2014 when they ran into a family member of hers who objected to their relationship due to their different caste and demanded that they stopped seeing each other, but they ignored the warning and continued with their relationship, and 2 weeks later the Applicant was confronted by her family member with some other men who proceeded to punch and kick him that the Applicant suffered bruises and cuts all over his body.

4.After the assault the Applicant and his girlfriend decided to elope to another place, but when the Applicant arrived at her place to meet up with his girlfriend, her father appeared and beat him up, and threatened him that he would be killed next time if he did not stop seeing his daughter.    

5.After the assault the Applicant stopped seeing his girlfriend, but as he was still fearful for his life, he therefore departed India on 8 March 2015 for 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 13 September 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

6.By a Notice of Decision dated 22 October 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 found no substantial grounds for believing that there will be any real and substantial risk of him being harmed or killed by his former girlfriend’s family upon his return to India due to the low intensity and frequency of past ill-treatment from them, that it was a private personal dispute 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 young 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 enemies to locate him.

8.On 9 November 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, of which the Board found to be late by 2 days but allowed its late filing, but the Applicant failed to attend the scheduled oral hearing on 14 November 2019 without any explanation, and the Board proceeded to deal with his appeal in his absence and on paper, and on 19 May 2020 it dismissed his appeal and also confirmed the decision of the Director.

9.In its decision the Board found in the absence of oral evidence from the Applicant that the material and information previously submitted by him to the Director and available before the Board vague and without details that it doubted the credibility of his claimed fear of harm from his former girlfriend’s family that caused the Applicant to depart his home country for Hong Kong, that his relationship with his former girlfriend had ceased since he left the country that there is no reason after all these years for her family to still have any further adverse interest in the Applicant, and that in any event it was a private personal dispute without any evidence of 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 away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.  

10.On 16 June 2020 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.

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.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 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.     

13.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.Furthermore, the Applicant recently on 22 October 2021 wrote to the Court requesting that his application be dismissed as he wants to return to his home country as it is safe for him to do so.  

15.In the premises, and as I am for the reasons given not 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 it is safe for him to return to his home country, I accede to his request and accordingly dismiss his leave application.

Dated the 2^nd day of December 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