Jagtar Singh v. Torture Claims Appeal Board

HCAL 1581/2019

[2021] HKCFI 3833

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1581 of 2019

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 25-year-old national of India who arrived in Hong Kong on 31 July 2015, and when he was refused entry by the Immigration Department, he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by the village head and his fellow supporters of the political party Shiromani Akali Dal (“SAD”) for refusing to join their party and over a land dispute 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 Gill Manj, District Gurdaspur, Punjab, India. After leaving school he worked as a farmer on his family’s farmland in this home village, and supported the political party Indian National Congress (“INC”) by regularly attending their local meetings and rallies.

3.In April 2014 during the general election, the Applicant was approached by Avtar who was the village head, and his son Mahtab to vote for their party SAD, and when he refused, they just left, but a few days later when the Applicant together with some of his fellow INC supporters were putting up posters and banners for their party, they were confronted by Avtar and his fellow SAD supporters who tried to stop them, and when Avtar saw the Applicant, he slapped him on the face that the Applicant became fearful for his safety that he left the scene to return home.

4.Subsequently SAD won the election, and one day in July 2014 while the Applicant was working on his family’s farmland, Mahtab with several men came onto the land and accused him of trespassing on his father’s land and proceeded to beat the Applicant with wooden sticks until intervened by other villagers who subsequently brought the Applicant to the local hospital for treatments.

5.After his discharge form the hospital, the Applicant made a report to the police but no investigation was carried out, but several months later in early 2015 when he was again attacked by Mahtab and his followers with hockey sticks, the Applicant fled to Delhi to take shelter in his uncle’s place, and in July 2015 he departed India for Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 29 August 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

6.By a Notice of Decision dated 23 September 2015 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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 Avtar or Mahtab or their men upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that his problems with them were private land disputes 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 perceived enemies to locate him.

8.On 9 October 2015 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, which was late by a few days but was allowed for late filing by the Board, and for the appeal he attended an oral hearing on 10 December 2015 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 8 January 2016 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board found no reliable evidence or reasons for the SAD people to specifically target the Applicant given that he was just an ordinary supporter of INC with no official post in the party, that his land dispute with Avtar and his son could be effectively resolved by the new land registration system, and that in any event it was a private personal matter 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.  

10.Meanwhile on 27 January 2017 the Director on his own initiative invited the Applicant to submit any additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”), and in the absence of any response from him, the Director by a Notice of Further Decision dated 15 February 2017 rejected his BOR 2 claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR including right to life under BOR 2 being violated upon his return to India.

11.On 22 February 2017 the Applicant again lodged an appeal to the Board against the further decision of the Director, and for which he again attended an oral hearing on 18 April 2019 before the Board during which he gave evidence and answered questions raised by the Adjudicator for the Board, and on 27 May 2019 his appeal was again dismissed by the Board which also confirmed the further decision of the Director upon finding that the Applicant had failed to provide any additional evidence or materials for his claim under BOR 2 risk and his admission of fear of risk to his absolute and non-derogable rights under the HKBOR including right to life under BOR 2 from the Indian government upon his return to his home country.

12.On 10 June 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s second decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely attached a copy of the decision but without putting forth any proper ground for his intended challenge thereof, 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. 

13.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.

14.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.                

15.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.

16.Furthermore, the Applicant recently on 30 November 2021 filed an affirmation requesting to “cancel” his application as his problem has been resolved and that he wants to return to his home country.

17.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 there is no more problem for him to return to his home country, I accede to his request and 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