Masih Robin v. Torture Claims Appeal Board

HCAL 695/2020

[2021] HKCFI 3828

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 695 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 39-year-old national of India who arrived in Hong Kong on 17 August 2015 as a visitor with permission to remain up to 31 August 2015 when he did not depart, and on 1 September 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 paternal uncles over a land 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 Village Dharmabad, District Gurdaspur, Tehsil Dera Baba, Punjab, India. After leaving school he farmed on his farmland, got married and raised a family with a son in his home village.

3.His 2 paternal uncles however coveted his farmland which he inherited from his father in 2013, and in 2014 they offered to buy the land from the Applicant, but when he refused, they started to harass him by cutting off the water supply to the land and by driving their cattle onto the land, and then one day in March 2015 while the Applicant was working on the land, his uncles together with some men arrived to demand that he signed over the land to them, and when he refused, they proceeded to beat him with wooden sticks until other villagers intervened, and before they left, his uncles warned him that next time if he still refused to sign over his land, he would be killed.   

4.As a result, the Applicant fled from his home village to take shelter in a friend’s place in Jamnagar City, and on 13 August 2015 he departed India for Jakarta, and from there he travelled to Hong Kong and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 18 September 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

5.By a Notice of Decision dated 7 November 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”).

6.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 uncles upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that there is no real intention of his uncles to seriously harm or kill him other than to put pressure on him to sell his land to them, that by killing him would not enable them to obtain the title to the land, that in any event it was a private family or 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 uncles to locate him.

7.On 26 November 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but 2 months later on 24 January 2019, he wrote to the Board requesting to withdraw his appeal as he wanted to return to his home country because it was safe for him to do so, and that he understood that upon the withdrawal of the appeal, the Director’s decision would stand and that it would be the final disposal of his non-refoulement claim by the Board.

8.By a letter dated 11 February 2019 the Board allowed the Applicant’s request to withdraw his appeal upon being satisfied that his request was freely sought, that he understood the consequences of the withdrawal, and that he had good reason to do so as he considered it safe for him to return to India. The Board accordingly directed that the Applicant’s appeal had been finally determined and disposed of, that no further action would be taken in respect thereof, and that the decision of the Director was confirmed. 

9.However, more than one year later on 20 April 2020 the Applicant filed a Form 86 in these proceedings for leave to apply for judicial review of the Board’s decision to withdraw his appeal, but no ground for seeking relief was given in his Form, while in his supporting affirmation of the same date he merely stated that he is not satisfied with the decision because he cannot go back to his home country as his life would not be safe there, and that he wants to stay in Hong Kong until his problem has been solved without putting forth any proper ground 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 Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

11.In the Applicant’s case, the Board had determined and disposed of his appeal upon what appears to me a proper and valid withdrawal by the Applicant at his own request and after a deliberate, informed and well-considered decision on his part, and hence his appeal was no longer extant and the Board had become functus officio with no jurisdiction to take any further step regarding his appeal: see Re Das Purnima Rani [2019] HKCA 669. As such and in the absence of any evidence from the Applicant that his withdrawal was invalid, or of any error of law or procedural unfairness in the Board’s decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.  

12.The fact is that it has been established by the Director in his 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, 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.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 determination of the Applicant’s claim.

14.Furthermore, the Applicant recently on 30 November 2021 filed an affirmation requesting to withdraw his application because he wants to return to his home country as it is now 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 given his latest confirmation that it is safe for him to return to his home country, I accordingly dismiss his leave application.

Dated the 22^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