Virkaranjit Singh and Otherrs v. Torture Claims Appeal Board

HCAL 412/2019

[2022] HKCFI 3206

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 412 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:

Leave to apply for judicial review refused.

Observations for the Applicants:

1.The Applicants are a married couple with their 2 children, all are nationals of India who arrived in Hong Kong on 27 March 2015 as a family with permission to remain as visitors up to 10 April 2015 when they did not depart and instead overstayed, and on 14 April 2015 they surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if they returned to India they would be harmed or killed by the husband’s creditor over their monetary and business disputes. They were subsequently released on recognizance pending the determination of their claim.

2.The 1^st Applicant husband (“A1”) was born in 1975 in Nadala, Kapurthala, Punjab, India. After leaving university with a Bachelor degree, he married the 2^nd Applicant (“A2”) and raised a family with a daughter, the 3^rd Applicant (“A3”) now aged 22, and a son, the 4^th Applicant (“A4”) now still a minor at aged 14, and ran a trading business in electronics, mobile phones and accessories in his home district earning good annual profits.

3.To meet the capital demand for his business, A1 in 2014 started to borrow various loans from his younger brother’s good friend Harmanjit who was a wealthy merchant from Village Mangewal in Tehsil, Kapurthala, and with their repayments including interests secured by depositing post-dated cheques with Harmanjit to be cashed at the end of the month.

4.Sometime in December 2014 Harmanjit suggested to A1 to sell his business to Harmanjit, but to which A1 thought he was only joking and declined his suggestion.

5.Shortly thereafter on 7 March 2015 A1 travelled to Hong Kong to attend a business exhibition, and returned to India 5 days later on 12 March 2015 after the exhibition.

6.Some 2 weeks later on 26 March 2015 A1 brought his family to Hong Kong for sightseeing, but on 28 March 2015 he was told by his younger brother on the phone that his office had been broken in with important documents and cheque books stolen, and so A1 gave instructions to his bank to stop all transactions involving his bank accounts.

7.However, on the same evening police came to his home looking for A1 as Harmanjit had made a complaint against him for fraud when his cheques earlier deposited with Harmanjit for repayment of his loans could not be cashed.

8.On his instructions A1’s brother went to meet Harmanjit to try to settle the matter, but Harmanjit refused and had in fact taken over A1’s business by relying on those documents stolen from his office, and had also threatened to kill A1 should he return to India to raise any issue of his taken-over of A1’s business.

9.As a result, A1 was advised by his brother for his safety not to return to India with his family, and so the Applicants overstayed in Hong Kong and subsequently raised their non-refoulement claim for protection, for which they completed a Non-refoulement Claim Form (“NCF”) on 20 December 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

10.By a Notice of Decision dated 16 January 2018 the Director of Immigration (“Director”) rejected the Applicants’ claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of their 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”).

11.In his decision the Director took into account of all the relevant circumstances of the Applicants’ claim and found no substantial grounds for believing that there will be any real and substantial risk of them being harmed or killed by Harmanjit or his associates upon their return to India due to the absence of or low intensity and frequency of past ill-treatment from them, that if their claim were true that having already taken over A1’s business that there is no more reason for Harmanjit to want to harm or kill the Applicants and that any such fear is based entirely on the Applicants’ own speculation unsupported by any reliable evidence, that in any event A1’s problem with Harmanjit was a private monetary or business dispute between them without any official involvement that state or police protection would be available to the Applicants 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 A1 as an able-bodied adult with working experience to move with his family 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 Harmanjit or his associates to locate them.

12.The Applicants then jointly lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which they attended an oral hearing on 16 October 2018 before the Board during which A1 gave evidence and answered questions raised of his claim by the Adjudicator for the Board while A2 and A3 also confirmed their case as based on A1’s evidence. On 7 January 2019 their appeal was dismissed by the Board which also confirmed the decision of the Director.

13.In its decision the Board found serious inconsistencies and implausibility in A1’s evidence that it was implausible for Harmanjit to have defrauded A1 of the ownership of his business that it did not consider him a credible witness and that he had fabricated his claim, that it also noted his concession of being able to relocate with his family to anywhere in India and to use his skills as a businessman to commence a new business to support his family, and concluded that the Applicants’ claim for non-refoulement protection failed on all applicable grounds.     

14.On 13 February 2019 the Applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in their Form, and in A1’s supporting affirmation of the same date he merely stated that he is not satisfied with the decision as he still has problem in his home country but without putting forth any proper ground for their intended challenge, nor did they request any oral hearing for their application, while later on 22 November 2021 A3 wrote to withdraw her application as she has married a local Hong Kong resident and has applied for dependent visa. As such and in the absence of any error of law or irrationality or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis for their intended challenge.

15.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.

16.In the Applicants’ case, the Board rejected their claims essentially on its adverse finding on A1’s credibility for the thorough and detailed analysis and reasoning set out in paragraphs 30 – 48 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of their claim, and in the absence of any error of law or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis to challenge the findings of the Board.  

17.The fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicants’ claim if true is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of India, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

18.I am of course mindful of the fact that A4 is still a minor now at aged 14 and not legally represented in these proceedings as required by Order 80 Rule 2 of the Rules of the High Court, nor was he so represented in his appeal jointly with his parents before the Board, and that it is necessary for the Court to consider and examine whether his claim had been separately considered and determined by the Board in a manner sufficient to meet the high standards of fairness in proceedings of this nature, and to see whether there are matters that may support potential minor-specific non-refoulement bases which might not have been properly advanced to the Board due to lack of legal representation in the appeal before the Board, when the proper approach of which was considered and examined by the Court of Appeal in the case of Fabio Arlyn Timogan v Evan Ruth [2020] HKCA 971, and of Re Jasvir Singh [2021] HKCA 53, in which it was held that claims of minor children even if based on the same set of primary facts are separate from the claims of their parents and are required to be considered as such having regard to their specific or personal circumstances, and that ill-treatment which may not reach the level of persecution in the case of an adult may do so in the case of a child.

19.In the present case, as noted above the claim of A4 was premised fundamentally on his father’s claim of risk of harm from a single individual over their private monetary and business disputes, of which the Board rejected as wholly fabricated by his father A1 that it was not accepted that any of the Applicants would face any real risk of harm if refouled to India, and that even if the claim were true that the Board was satisfied that the Applicants could relocate to any other part of the country where A1 would use his skills as a businessman to support the family including A4, as conceded by A1 during the appeal hearing before the Board (see[47] of the Board’s decision), and which was also found by the Director in his decision as noted above an alternative available to the Applicants to avoid or negate their claimed risk when there would not be any chance of any of them being located by Harmanjit or his associates.

20.As such, and given the fact that A4 was born in India and had lived there and attended school up to the age of 7 years, and that upon his return there with his parents with whom he will no doubt continue to live under their joint care and support during his minority. In the circumstances I am unable to find any other matter or material which may be specific to A4’s personal circumstances as a minor that had not been properly considered by the Board or could have been advanced to the Board had A4 been legally represented in his appeal to the Board.                               

21.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 Applicants’ claim, nor do I see any material that may give rise to any concern that may be non-refoulement grounds related specifically to A4 that had not been advanced to the Board or considered by it due to lack of legal representation for A4 before the Board.

22.For these reasons I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review including that of A4 as a minor child, for whom I shall treat the absence of legal representation in these proceedings as a mere irregularity as it would not serve any useful purpose for him to be so represented given the lack of merits in his intended application, and in view of A3’s recent confirmation of her wish to withdraw her own application, I accordingly refuse the leave application of all the Applicants.

Dated the 25^th day of October 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