Sandeep Singh v. Torture Claims Appeal Board

HCAL 50/2020

[2022] HKCFI 2911

N THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 50 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 the Applicant in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 32-year-old national of India who first arrived in Hong Kong on 6 July 2014 as a visitor with permission to remain up to 20 July 2014 when he did not depart and instead overstayed, and was arrested by police on 7 August 2014. 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 his two uncles over a land dispute in his home village. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant’s case is that his father who used to reside in Village Bhikhiwind, Tehsil Patti, Tarn Taran, India where he together with the Applicant’s two uncles inherited some land from the grandfather, and in 1990 when the family moved to Vikas Nagar, Chheharta, Amritsar, the Applicant’s father allowed his brothers to manage his share of the land.

3.After the Applicant’s father passed away in 2002, the Applicant’s elder brother inherited the land, and in 2005 sent the Applicant to collect the land title documents from his uncles who however refused to hand them over, and insisted to continue to manage the land for the Applicant’s family by letting out the land for rental income.

4.Later when the Applicant found out that his uncles had in fact pocketed half of his family’s rental income and refused to account for them, it led to constant conflicts between the families, and on one occasion in 2009 when the Applicant again demanded for the return the title deeds to his family, he was attacked by his 2 uncles with wooden sticks and a warning that they would kill him if he persisted with his demand.

5.Eventually the police arrived to take all of them back to the police station, but under the influence of his uncles, the police released everybody except the Applicant who was detained for several days until his elder brother came to bail him out.

6.After the incident the Applicant became fearful for his life, and so he departed India for Singapore where he worked and studied for about one year before returning to India in 2012.

7.Upon returning to his home village, the Applicant discovered that his uncles had stopped sharing the rental income with his family, and also demanded that his family ‘s land be sold to them at a cheap price which led to further quarrels between the families, for which his uncles put the blame on the Applicant and threatened to have him killed, and so the Applicant departed India on 6 July 2014 for Hong Kong where he subsequently overstayed, and after his arrest by the police, he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 14 April 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

8.By a Notice of Decision dated 19 May 2016 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”).

9.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 evidence of any real intention of them to seriously harm or kill him, that it was in any event a private land dispute between their two families 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 2.9 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 Delhi where it would be difficult if not impossible for his uncles to locate him.

10.Meanwhile on 24 July 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 August 2017 also rejected the Applicant’s 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.By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“Board”) against the earlier decision of the Director, the notice of which was filed on 1 June 2016, but for which he failed to attend the scheduled oral hearing on 14 September 2017, and in the absence of any explanation from him for his absence or any request for any further oral hearing, the Board proceeded to deal with his appeal in his absence and on papers, and on 29 December 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

12.Upon the dismissal of his appeal by the Board, and in the absence of any legal challenge brought by the Applicant by way of judicial review of the Board’s decision, the Director on 28 August 2018 issued a deportation order against him, and on 14 September 2018 repatriated him back to India.

13.However, a few months later on 17 December 2018 the Applicant departed India and sneaked back into Hong Kong, and on 24 December 2018 he was arrested by police, and while being remanded at Lai Chi Kok Reception Centre, he made a request to the Immigration Department to make a subsequent claim for non-refoulement protection on the basis that upon his return to his home village, his 2 uncles again demanded him to transfer the land to them, and when he refused, they together with their followers grabbed him from his home and took him to an abandoned house where they beat him with wooden sticks for 3 days until he eventually succumbed and signed some documents before he was released.

14.Upon receiving medical treatments at the hospital, the Applicant then made a complaint to the police against his uncles, but on the same night his uncles together with their men came to his home and shouted from outside that he should sign further documents for the land transfer or else they would kill him with their pistols, during which they fired a shot through the window, but the Applicant managed to escape unharmed through the backdoor and fled to Jalandhar to hide in a relative’s place before moving on to Delhi, and on 17 December 2018 he again departed India and later sneaked into Hong Kong, and after his arrest by the police on 24 December 2018 and was remanded at Lai Chi Kok Reception Centre pending charges for unlawfully remaining in Hong Kong and for breaching the earlier deportation order, he then raised his request to make a subsequent claim for non-refoulement protection.

15.By a letter dated 14 May 2019, the Director allowed the Applicant to make a subsequent claim, for which he completed a second NCF on 5 July 2019 and attended a screening interview at the Lai Chi Kok Reception Centre before another immigration officer with legal representation from DLS.

16.By a Notice of Decision dated 23 August 2019 the Director again rejected the Applicant’s subsequent claim on all the applicable grounds upon finding inconsistencies and discrepancies in his evidence from those given in his previous claim that the credibility of his claim of fear of being harmed or killed by his uncles for leaving his home country again for Hong Kong is doubtful, that in any event as found in his previous claim it was a private land dispute between him and his uncles without any state or official involvement that state or police protection would be available to him if needed upon his return to India, and that reliable and objective 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 young man with working experience to move to other part of the country away from his home district in large cities such as Delhi where he had stayed before without incidents and where it would be difficult if not impossible for his uncles to locate him.

17.On 2 September 2019 the Applicant from the Lai Chi Kok Reception Centre lodged an appeal to the Board against the Director’s decision on his subsequent claim.

18.Some 2 months later on 25 November 2019 the Applicant wrote to the Board to request to withdraw his appeal as he wanted to “get sentence for his charge”.

19.On 28 November 2019 the Board in reply asked the Applicant for clarification regarding his request to withdraw his appeal, and in the absence of any response from him, the Board by a Notice of Decision dated 6 December 2019 confirmed that the Applicant’s appeal/petition has been withdrawn after having regard to all the available information before it that it was satisfied that his application to withdraw his appeal/petition was freely sought, that there was good reason for his proposed withdrawal namely for the purpose of sentencing for his criminal case, and that he understood the consequences of the withdrawal of his appeal, whereupon the Board proceeded to confirm the Director’s decision.

20.However, one month later on 6 January 2020, the Applicant filed a Form 86 for leave to apply for judicial review of this decision of the Board, 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 as before that his life is still in danger in his home country over his land dispute with his uncles but without putting forward any proper ground for his intended challenge, nor was he able to do so at the hearing of his application.

21.As noted above, the Board allowed the Applicant to withdraw his appeal at his own request for his stated reason after being satisfied that he knew what he was doing as well as the consequences of the withdrawal. As such the Board found as a fact that the Applicant had acted with the knowledge and intention to bring his appeal/petition to an end, and in the absence of any error of law or procedural unfairness or irrationality on the part of the Board in allowing his appeal/petition to be so withdraw at his request being clearly and properly identified by the Applicant, I am unable to find any reasonably arguable basis for his intended challenge.

22.In Re Das Purnima Rani [2019] HKCA 669, in holding that the Board in dismissing an appeal against the Director’s refusal of a non-refoulement claim upon a valid withdrawal of the appeal by the claimant that the Board becomes funtus officio with no further jurisdiction to deal with the appeal, the Court of Appeal stated and explained in its judgment as follows:

“41. Once the Board dismisses an appeal against the Director’s refusal of a non-refoulement claim upon a valid withdrawal or abandonment of the appeal by the claimant, in the sense of being the result of a deliberate and informed decision, the appeal is no longer extant and the Board becomes functus officio with no jurisdiction to take any step regarding the appeal. As analysed by DHCJ Yee at [36]-[40] and [47]-[48], s 37V(2)(b) of the Ordinance stipulates that a torture claim rejected by the Director is finally determined when the appeal against it, if one were lodged, was disposed of. Notwithstanding the lack of determination on the merits, the dismissal of an appeal on its withdrawal nevertheless disposed of the appeal. Otherwise, not only would there be no finality in the determination of such claims, much room would be created for abuse by claimants desirous of delaying their removal from Hong Kong by making last minute withdrawals and then subsequently applying for reinstatement of the appeals.

…

43. On the other hand, where a withdrawal or abandonment is invalid, it would logically be a nullity and, as such, could and would have no effect on the appeal which remains extant so that the Board can and should resume processing the same upon the claimant’s application. Quite apart from the nullifying effect of an invalid withdrawal/abandonment, this conclusion also appears to us to follow from applying the high standard of fairness required in handling non-refoulement claims.”

23.Applying these principles, and apart from the fact that the Applicant never applied to the Board to resume or reinstate his appeal, I do not find anything in his Form 86 or supporting affirmation which may appear to contest the validity of his earlier withdrawal of his appeal to the Board against the Director’s decision other than just a regurgitation of his claim as before that he would be killed over his land in India, something which he also repeated in Court at the hearing of his leave application.

24.That being the case, and in the absence of any error of law or irrationality or procedural unfairness in the Board’s decision in allowing the withdrawal or dismissal of his appeal upon his own request being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge of the Board’s decision.

25.Furthermore, on the factual basis of this subsequent claim of the Applicant which is essentially the same as in his previous claim as found by the Director as a private land dispute within the two families, and as established in both of the decisions of the Director that the risk of harm in such claim of the Applicant 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.

26.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 case.

27.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.

Dated the 23^rd day of September 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