Baljinder Singh v. Torture Claims Appeal Board

HCAL 1677/2019

[2022] HKCFI 2303

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1677 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 43-year-old national of India who last arrived in Hong Kong on 23 December 2012 as a visitor with permission to remain up to 9 January 2013 when he did not depart and instead overstayed, and was arrested by police some 3 months later on 23 April 2013. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by some fellow villagers over their land dispute with his father in his home village. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Varpal, Amritsar, Punjab, India where his father owned some farmland on which his family would farm to make their living, but when his neighbor Balkar who also owned the adjacent land offered to buy their land at a cheap price, and when the Applicant’s father rejected the offer, Balkar ganged up with the village head Avtar to put pressure on the Applicant’s father over the sale, and one day in March 2012 Avtar brought some men to assault the Applicant’s father while he was working on the land until the Applicant intervened and took his father to the hospital for medical treatment.

3.After having later made a complaint of the assault to the police against Avtar, the Applicant heard that Avtar had instead filed a false charge against him and that the police were looking for him, the Applicant then fled to Putlighar to take shelter in an uncle’s place.

4.One day in April 2012 while shopping in the market in Putlighar, the Applicant was attacked by some strangers until other passers-by intervened. As he suspected that those men were sent by Balkar or Avtar to harm him and hence it was no longer safe to remain in India, the Applicant therefore moved to New Delhi in July 2012, and 2 months later on 29 September 2012 he departed India for Hong Kong and then to Macau, returning to Hong Kong on 23 December 2012 where he subsequently overstayed, and after his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 2 May 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 29 May 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 found no substantial grounds for believing that there will be any real risk of him being harmed or killed by Balkar or Avtar upon his return to India due to the low intensity and frequency of past ill-treatment from them, that there is no evidence that those unknown strangers who attacked him were sent by Balkar or Avtar other than his own suspicion and speculation, that in any event it was a private dispute between them and his father over land in which he had no legal entitlement and in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to upon his return to India, 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 2.9 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 the country away from his home district in large cities such as Mumbai where it would be difficult if not impossible for anyone to locate him.

7.On 13 June 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he requested in writing for the Board to deal with his appeal without any oral hearing upon adopting all the information and material previously submitted to the Director and contained in the hearing bundle available before the Board as evidence for his claim and appeal. Accordingly, the Board proceeded to deal with the appeal in his absence and on paper. On 17 May 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board accepted the Applicant’s claim of a land dispute between Balkar and his father with personal grudges arising therefrom towards him but doubted that it was serious enough to cause him to leave his home country for Hong Kong, and that in any event it was a private matter between them without any official involvement that state or police protection would be available to the Applicant upon his return to India that it concluded that his claim for non-refoulement protection failed on all applicable grounds.

9.On 18 June 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1)  That the Director and the Adjudicator reached their decision wrongly in assessing his non-refoulement claim as they were not fair or reasonable as required by the Wednesbury test in that the Applicant’s right to life must be protected by the criminal law from extra-judicial killings that he may face if deported back to his home country;

(2)  That the Director failed to appreciate or give proper weight or importance to the presence of state acquiescence in the Applicant’s case which led to an unfair outcome of rejecting his non-refoulement claim as he was tortured at the behest of the state law enforcement agencies and politicians that the state should be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(3)  That the Adjudicator acted unreasonable and was procedurally unfair by placing too much reliance on COI without taking into account of the Applicant’s personal background and experience;

(4)  That the Director had listed relevant COI which supported the Applicant’s aversions that the police in his home country would not be able to protect but failed to consider or give enough weight to those evidence and instead ruled otherwise against the Applicant which was a clear case of unfair attitude shown by the Director which in itself is enough to render his decision void;

(5)  That the Director failed to attain the high standard of fairness required by the Wednesbury test in the decision in failing to take account of the fact that corruption and incompetency of the administration in the Applicant’s home country is still a very serious problem as reported by various human rights organizations which stated testament to the Applicant’s assertions that the decision should be considered unreasonable in the scope of public law;

(6)  That the Adjudicator was procedurally improper and unfair when assessing whether to accept explanations provided by the Applicant and unreasonably required him to response to questions that he was not in a position to offer any;

(7)  That the Adjudicator failed to take account the nexus of political parties and official corruption which exist in the Applicant’s home country making persecution effectively persecution by the state; and

(8)  That the Adjudicator made a ruling to dismiss the Applicant’s appeal/petition based on findings which ought to allow the appeal/petition and hence the Board’s decision was irrational.

10.These are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they apply to his case or how the Director or the Adjudicator had erred in their decisions, or in what way were their decisions unfair or unreasonable, or what relevancy was state acquiescence or torture or extra-judicial killings to his claim when the factual basis of his own case at the highest was a private land dispute between his father and Balkar without any state or official involvement, or how did the Director or the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI or to apply high standards of fairness in assessing his claim. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable 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, 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 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 assessment of the Applicant’s claim.

14.Furthermore, the Applicant recently on 17 June 2022 wrote to request to withdraw his application as his problem has been resolved and that it is now safe for him to return to his home country.

15.In the premises, 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 now return to his home country, I accordingly dismiss his leave application.

Dated the 28^th day of July 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