Amritpal Dass v. Torture Claims Appeal Board

HCAL 192/2020

[2023] HKCFI 12

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 192 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 (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 36-year-old national of India who arrived in Hong Kong on 25 January 2011 as a visitor, but when he was refused entry by the Immigration Department, he raised a torture claim on the basis that if he returned to India he would be harmed or killed by his uncle and cousin over a land dispute in his home village, and after it was rejected, he then sought non-refouleemnt protection on the same basis plus additional fear of being harmed by his mother over his subsequent religious conversion in Hong Kong. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised as a Sikh in Village Nangal, Ambia of Jalandhar, Punjab, India. After leaving school he went to Dubai to work as a construction worker until 2011.

3.Upon returning to his home village in India, the Applicant intended to build his own house on his father’s land then held by his mother after the death of his father, but his uncle and cousin who also owned the adjacent land claimed that the land also belonged to them and objected to the Applicant building any house on the land, which led to heated dispute between the 2 families, and after several incidents when the Applicant was assaulted by his uncle and cousin, and with death threats made against him, the Applicant on 25 January 2011 fled from India for Hong Kong, but when he was refused entry by the Immigration Department, he raised a torture claim, and after it was rejected, he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 31 May 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

4.While released on recognizance pending the determination of his claim, the Applicant in 2011 married a local resident who was a Muslim, and for which he converted his religion to Islam, but when his mother subsequently learnt about his religious conversion, she became furious and made threats against him including disowning him from her family, and of which the Applicant included as part of the risks for his claim for non-refoulement protection.

5.By a Notice of Decision dated 23 June 2017 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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 assessed the level of risks of harm from his uncle and cousin and/or his mother upon his return to India as low due to the absence of or 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 in any event his problems with them were private personal disputes within the family 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 Delhi where it would be difficult if not impossible for anyone to locate him.

7.On 4 July 2017 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 1 August 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 6 December 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found the Applicant’s claims of fear of harm from his uncle or cousin over their land dispute or from his mother over his religious conversion were both private family disputes without any official involvement that state or police protection would be available to the Applicant upon his return to India as well as reasonable internal relocation for him to move safely to other part of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

9.On 10 December 2018 the Applicant filed his Form 86 under HCAL 2821/2018 for leave to apply for judicial review of the Board’s decision, 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 he would be killed by his uncle and cousin if refouled to his home country but without putting forward any proper ground for his intended challenge.

10.Before his application could be dealt with by the court, the Applicant on 10 December 2019 filed an affirmation to withdraw his application, which was allowed by the Court on 12 December 2019 for him to do so.

11.However, just one month later on 17 January 2020 the Applicant again filed a Form 86 in these proceedings for leave to apply for judicial review of the same Board’s decision, and again no ground for seeking relief was given in this Form, and in his affirmation he sought to explain that earlier he withdrew his application because he thought that his problem in his home country had been resolved, but later when he realized that it was not the case, he found it necessary to re-open his leave application to challenge the Board’s decision, and so he sought leave from the court for him to do so.

12.Given the nature of this sort of application and the fact that the merits of his leave application have never been formally determined, I accepted his explanation and accordingly extended time for him to proceed with his leave application, but as noted above the Applicant has failed to put forward any proper ground for his intended challenge, and in the absence of any error of law or irrationality or procedural unfairness being clearly and properly identified by the Applicant, I do not find any merits in his intended application.

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 fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in his 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.

15.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.

16.Furthermore, the Applicant recently again filed an affirmation to withdraw his application but without stating any reason therefore. In the premises, and 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, I accordingly dismiss his leave application.

Dated the 18^th 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