Gill Amandeep Singh v. Torture Claims Appeal Board

HCAL 1488/2020

[2021] HKCFI 3739

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1488 of 2020

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 27-year-old national of India who entered Hong Kong illegally on 22 November 2015 and surrendered to the Immigration Department on 1 December 2015. On 5 April 2016, he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his girlfriend’s family who opposed their relationship and/or by the local police for participating in a protest in his home district. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised as a Sikh in Kalan, Punjab, India. After leaving school he farmed on his family’s farmland in his home village, and in 2013 started to date a girl from a wealthy Hindu family in Kotkapura City, but her family were against their relationship as they regarded the Applicant as poor and of different religion, and one day in September 2015 his girlfriend’s brother together with several men confronted the Applicant and beat him with kicks and punches, and warned that next time he would be killed if he did not end the relationship.

3.Shortly thereafter the Applicant participated in a sitting protest in front of the local police station attended by several hundred protestors over an earlier religious dispute between the Sikhs and the Hindus in the village, and when the police started to disperse the protestors with teargas and wooden sticks, the Applicant fled from the scene to take shelter in a friend’s place, but when he heard that his girlfriend’s father planned to frame him in a murder case, he felt it was no longer safe to remain in India, and so on 14 November 2015 he departed 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 12 September 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

4.By a Notice of Decision dated 12 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”).

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 the police or his girlfriend’s family upon his return to India as low due to the absence or low intensity and frequency of past ill-treatment from them, that there is no evidence that he is being pursued by the Indian police or authorities and given the fact that he was able to leave the country without problem that it is not accepted that there would be any risk of harm to him from the Indian police or authorities, that his problem with his girlfriend’s family is a private personal 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 young adult with working experience to move to other part of India away from his home district in large cities such as Mumbai or Delhi where it would be difficult if not impossible for his girlfriend’s family to locate him.

6.On 24 October 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 11 December 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 2 June 2020 his appeal was dismissed by the Board which also confirmed the decision of the Director.

7.In its decision the Board accepted the Applicant’s claim of events occurred to him including his participation in a protest and threats from his girlfriend’s family to try to end their relationship, but found no evidence that he had been pursued by the Indian police or authorities when the aim of the police regarding that protest was to disperse the protestors rather than to make mass arrests of several hundreds of them which was also the reason why the Applicant was able to leave the country without any difficulties, while his problem with his girlfriend’s family was a private personal dispute between them without any 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 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.    

8.On 15 July 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 attached a copy of the decision but without putting forth any proper ground for his intended challenge. 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.

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, 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 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.                

11.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.

12.Furthermore, the Applicant recently on 19 November 2021 filed an affirmation requesting to withdraw his application as all his problems in India are solved and that he has “no more life threat”.

13.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 of no further problem or risk in his home country, I accede to his request and accordingly dismiss his leave application.

Dated the 14^th 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