Balkar Singh v. Torture Claims Appeal Board

HCAL 1890/2020

[2022] HKCFI 404

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1890 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 43-year-old national of India who arrived in Hong Kong on 30 November 2015 as a visitor with permission to remain up to 14 December 2015 when he did not depart and instead overstayed, and on 16 December 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 a member of the political party Bharatiya Janata Party (“BJP”) over some land dispute in his home country. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Ramthali, Tehsil Guhla, District Kaithal-Haryana, India. After leaving school he worked as an accountant, got married and raised a family with 3 children, and supported the political party Congress Party (“CP”) by regularly organizing social welfare work.

3.In 2006 he purchased a plot of land in Kurukshetra, but later when the owner of the adjacent land made an offer to purchase his land, and when the Applicant refused, the owner then warned him that he was a senior BJP member and threatened him that there would be serious consequences if the Applicant still refused to sell his land.

4.The Applicant then made a complaint to the police of the threats, but of which he was just advised to settle the dispute themselves, but one day in May 2010 the Applicant was attacked by some BJP supporters on the street that he sustained a head injury that required hospitalization for more than a week.

5.After his discharge from hospital, the Applicant became fearful of further attacks by the BJP people, and so he fled to Uttar Pradesh to take shelter in his uncle’s place, and then later moved to his aunt’s place in Punjab, but when he heard that those BJP people were looking for him everywhere, he felt it was no longer safe to remain in India, and so on 30 November 2018 he departed for Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 6 October 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 6 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”).

7.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found inconsistencies and discrepancies in his account of events occurred in India prior to his departure that the credibility of his claim was doubtful, that in any event it was a private land dispute between him and his neighbor 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 Ranchi where it would be difficult if not impossible for him to be located.

8.On 16 November 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 13 January 2020 before the Board during which he however refused to give any further evidence or to answer any further question raised of his claim by the Adjudicator for the Board other than confirming those already given previously to the Director despite being invited and advised to do so in order to clarify and explain the various inconsistencies and discrepancies raised and pointed out to him by the Adjudicator during the hearing. On 30 July 2020 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found serious discrepancies and conflicting information in the Applicant’s evidence previously given to the Director but which he refused to give any further evidence or to provide any further details to elaborate or clarify or to answer questions raised thereof in his appeal before the Board that it found such discrepancies and contradictions incapable of reconciliation as well as the implausibility of the basis of his claim that it concluded that the Applicant had fabricated his claim, and concluded that it was not satisfied that there are any substantial grounds for believing that he will face any real risk of harm of any sort upon his return to India that his claim for non-refoulement protection failed on all applicable grounds.      

10.On 22 September 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 repeated his claim of fear of being killed upon his return to his home country, that the administration in his country would not protect him, and relocation to other area is not possible 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 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.In the Applicant’s case, essentially his claim was rejected by the Board on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 37 – 51 of its decision which had been raised and discussed with the Applicant during his appeal hearing but which he refused or failed to clarify or explain or elaborate, and in the absence of any error of law 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 to challenge the finding of the Board.   

13.Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim if true 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.

14.In the premises and 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.I should also mention that on 4 January 2022 the Applicant filed an affirmation to claim that his enemy still wants to kill him but he wants to cancel his application for judicial review which appears contradictory to me, and as such I shall just ignore it. 

16.In conclusion, 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, I therefore refuse to grant leave and accordingly dismiss his application.

Dated the 8^th day of February 2022.

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