Rangi Nirvair Singh v. Torture Claims Appeal Board

HCAL 641/2020

[2023] HKCFI 37

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 641 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:

1.  the application for leave to apply for Judicial Review be reinstated; and

2.  leave to apply for Judicial Review be refused.

Observations for the Applicant:

1.The Applicant is a 32-year-old national of India who arrived in Hong Kong on 27 October 2016 as a visitor with permission to remain up to 11 November 2016 when he did not depart and instead overstayed, and was arrested by police on 15 November 2016. 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 girlfriend’s family which disapproved of their relationship and/or by the police over various criminal charges brought by his girlfriend’s family against him. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Ganga Nagar, Rajasthan, India. While still at school he started dating a girl from a neighbouring village, but one night in June 2014 he was told by his girlfriend that her family did not approve of their relationship, and after her father and elder brother had beaten her badly and made threats against both of them, they on 21 June 2014 eloped together from their home district to various places including Ludhiana, Bhalta and Chandigarh.

3.However, later when the Applicant heard that his girlfriend’s family had brought criminal charges against him for raping and kidnapping his girlfriend who was then said to be underage, and for which the police had issued a warrant for his arrest, the Applicant became fearful for his own safety, and so on 21 September 2014 he departed India for Thailand, and for the next 2 years he moved from country to country including Vietnam, Indonesia and Maldives before eventually coming to Hong Kong on 27 October 2016 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 21 February 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

4.By a Notice of Decision dated 22 March 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”).

5.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 or the police as low due to the low intensity and frequency of past ill-treatment from them, that if he was indeed wanted by the police for criminal charges properly brought against him then he would be a fugitive of the law and not entitled to non-refoulement protection, that on the other hand his problem with his girlfriend’s family was a private personal dispute 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 the country away from his home district in large cities such as Mumbai or Delhi where it would be difficult if not impossible for his girlfriend’s family to locate him.

6.On 3 April 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended 2 oral hearings on 31 July 2019 and 11 November 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 1 April 2020 his appeal was dismissed by the Board which also confirmed the decision of the Director.

7.In its decision the Board accepted the Applicant’s claim of his dispute with the family of his girlfriend over their relationship but found any fear of him being harmed by the police over the Criminal charges brought against him for rape and kidnapping of his girlfriend was merely his own speculation and not supported by relevant COI which show that under the existing legal and judicial system in India that if so charged by the police he would be entitled to due process and proper defense with legal representation in a fair trial, while his problem with his girlfriend’s family was a private personal dispute without any state or official involvement that police protection would be available to him upon his return to India as well as reasonable internal relocation for him to move safely to other part of the country without any risk of being located by his girlfriend’s family that his claim for non-refoulement protection failed on all applicable grounds.

8.On 14 April 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 or his supporting affirmation.

9.However, before his application could be dealt with by the Court, the Applicant on 22 December 2020 filed an affirmation requesting to withdraw his application, and on 8 January 2021 his request was allowed by Deputy High Court Judge P. Li without any determination of its merits that his application was treated as withdrawn.

10.Some 1 ½ years later on 15 August 2022 the Applicant issued a summons to request to “re-open” his application as his claimed problem in his home country has re-surfaced again that he wants to pursue his application.

11.Given the nature of this sort of claims and the fact that the merits of his application have never been formally determined before, in order to save time and costs and upon hearing him in evidence, I allowed his request to re-instate his application for hearing.

12.However, as noted above, the Applicant failed to put forth any proper ground in his Form or affirmation for his intended challenge, nor was he able to do so at the hearing of 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 being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

13.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.

14.In the Applicant’s case, the Board rejected his claim essentially on its correct findings that he failed to establish any real risk of being harmed by the police or his girlfriend’s family for the thorough and detailed analysis and reasoning set out in paragraphs 47 – 79 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim in 2 hearings, 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.

15.Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decision that the risk of harm from his girlfriend’s family 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, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

16.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.

17.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 3^rd day of January 2023.

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