Sandeep Singh v. Torture Claims Appeal Board and Another

HCAL 2282/2019

[2022] HKCFI 2480

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2282 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 28-year-old national of India who entered Hong Kong illegally on 23 November 2015, and some 5 months later on 7 April 2016 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 girlfriend’s family who objected to their relationship. He was subsequently being released on recognizance pending the determination of his claim. 

2.The Applicant was born and raised in a village in Punjab, India where he met his girlfriend at Grade 12, and after leaving school he worked in his father’s electronic shop, and carried on his relationship with his girlfriend but kept it from their families due to their different religions.

3.However, eventually in 2012 it was discovered by his girlfriend’s parents who one day came with other male relatives to the Applicant’s shop and beat him with wooden sticks until the neighbours intervened and brought him to hospital for medical treatment.

4.After another assault was carried out by his girlfriend’s family against him as well as his uncle who tried to intervene, the Applicant fled to Jalandhar in August 2014 to take shelter in a friend’s place, but when he later heard his girlfriend’s family also attacked his father when they were unable to find him in his home village, and had later come to Jalandhar looking for him, the Applicant fled to Delhi and on 4 October 2015 he departed India for Hong Kong, but when he was refused entry by the Hong Kong Immigration Department, he then went to China, and from there he later sneaked into Hong Kong, and some 5 months later he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 1 August 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 10 August 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 and non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) 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 girlfriend’s family upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill him other than to force him to end the relationship which the Applicant did by leaving the country with just few contacts with his girlfriend all these years that it is not accepted that there would still be any adverse interest in him, it was in any event a private personal dispute between the two families without any official involvement that state 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 man with working experience to move to other part of the country away from his home district in large cities such as New Delhi where it would be difficult if not impossible for anyone to locate him.   

7.On 21 August 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 2 November 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 11 July 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found serious inconsistencies discrepancies and contradictions in the Applicant’s evidence and that he was unable to remember the name of his alleged girlfriend whom he claimed to have a relationship for 4 years that the Board considered as wholly incredible and implausible that it did not consider the Applicant a witness of truth, that his credibility was further undermined by his failure to raise it upon first arrival in Hong Kong until more than 5 months later that it did not accept that he had a relationship with any alleged girlfriend or that her family had threatened or assaulted him or his family, and that it was not satisfied that he had told the truth in relation to why he left India or why he does not want to return that it concluded that there is not a real risk that he would face any of the proscribed form of harm from anyone upon his return to India that his claim for non-refoulement protection failed on all applicable grounds. 

9.On 9 August 2019 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he put forward various grounds for his intended challenge which may be summarized as follows:

(1)  That he was not provided with any legal representation in his appeal before the Board;

(2)  That he was not provided with any language or interpretation assistance in his appeal before the Board;

(3)  That the Adjudicator failed to give proper reasons or explanation for rejecting his claim;

(4)  That the Board failed to properly consider the relevant COI in assessing his appeal and non-refouleemnt claim; and

(5)  That the Board was procedurally unfair in failing to provide a proper translation of its decision to the Applicant.   

10.For his complaint in Ground (1) of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

11.The Applicant already had the benefit of legal representation from DLS in presenting his case to the Director, and was able to testify and make representation in his appeal hearing before the Board and to answer questions raised of his claim by the Adjudicator without difficulty. As such I do not find anything amiss arising from the lack of legal representation in his appeal process before the Board, nor do I find this ground reasonably arguable for his intended challenge.

12.As for his complaint under Ground (2) of not being provided with language or interpretation assistance in his appeal to the Board, it is clear that he was already well familiar with his own NCF and the Director’s decision which he was then seeking to appeal when he was still represented by DLS, and that he was assisted by an interpreter at his appeal hearing before the Board during which he never raised any such issue. As such and in the absence of any particulars or specifics to demonstrate that the basis of his claim has indeed been wrongly interpreted or wrongly understood by the Board, I find this complaint of the Applicant simply speculative and without basis.

13.Regarding his complaint under Ground (3), it is plainly wrong for the Applicant to claim that no explanation was given by the Board in rejecting his non-refoulement claim, for which the Board clearly did in paragraphs 28 – 62 of its decision analyze in details of his evidence and explain its reasons for rejecting his claim and his appeal properly, sufficiently and correctly in my judgment. There is again simply no basis for this complaint of the Applicant.

14.As for Ground (4) over the Board’s assessment of the relevant COI in its assessment of his claim, again the Applicant has failed to provide any particulars or specifics in support of this complaint, and upon examination of those COI referred to in paragraphs of the decision of the Board as well as those earlier considered by the Director which the Board had also confirmed, I do not find any basis in this complaint of the Applicant either.

15.As for his complaint under his last ground over the lack of translation of the Board’s decision for him, it is clearly not a valid ground to challenge the validity or legality of the decision, and as such it is not reasonably arguable for his intended challenge either.

16.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an 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 risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and 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 properly and clearly identified by the Applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see 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.

17.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in the decision as noted above and with the benefit of hearing him in his oral evidence and answers to questions raised of his claim during his appeal hearing, 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 to challenge the finding of the Board.

18.The fact is that it has also been correctly 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.               

19.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.

20.Furthermore, the Applicant recently on 15 July 2022 filed an affirmation requesting to “stop” his case as he wants to go back to home in India where it is now safe and not dangerous.

21.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 now safe for him to return to his home country, I accordingly dismiss his leave application.

Dated the 12^th day of August 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