Gurteg Singh v. Torture Claims Appeal Board

HCAL 908/2020

[2023] HKCFI 13

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 908 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 25-year-old national of India who entered Hong Kong illegally one day in February 2019 and was arrested by police on 28 March 2019. 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 who disapproved of their relationship. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Sherpur Dona, Sultanpur Lodhi, Kapurthala, Punjab, India. After leaving school he assisted his father farming in his father’s farmland in his home village.

3.In 2015 he started to form a relationship with his girlfriend, but one day in 2016 while they were dating in Lohian Khas, they were confronted by her elder brother who together with his friends proceeded to attack the Applicant with hockey sticks, and before they left, her brother demanded the Applicant to end the relationship or else they would kill him.

4.After another attack by his girlfriend’s family and when the local police failed to take any action, the Applicant was advised by his parents to leave his home village to save his life, and so the Applicant left home and moved from place to place, but later in 2017 when he heard that his girlfriend’s family was still looking for him everywhere, he felt it was no longer safe to remain in India, and so in June 2017 he departed for China, and from there he later in February 2019 sneaked into Hong Kong, 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 29 May 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 25 June 2019 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”).

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, that in any event it was a private personal dispute between them 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 his girlfriend’s family to locate him.

7.On 9 July 2019 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 29 April 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 6 May 2020 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board accepted the Applicant’s evidence of threats from his girlfriend’s family over their disapproval of their relationship but doubted any real intention of them to seriously harm or kill the Applicant or his claim of such fear that caused him to leave his country for Hong Kong, and that in any event it was a private personal dispute between them without any official involvement that state/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 fear of being located by his girlfriend’s family that his claim for non-refoulement protection failed on all applicable grounds.

9.On 15 May 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  Procedural unfairness in that the Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirement;

(2)  Procedural unfairness in that the Adjudicator acted in a procedural unfair manner in dealing with the Applicant’s appeal;

(3)  Procedural unfairness in that the Board’s decisions to refuse the Applicant’s appeal were unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(4)  Procedural unfairness in the Board’s failure to meet the greater care and duty owed to a self-represented claimant;

(5)  That the Board significantly relied on source of news not officially recognized or were hearsay or outdated that resulted in making groundless speculations that it would be safe for the Applicant to return to his home country; and

(6)  Procedural unfairness in failing to provide him with the hearing bundle for his appeal before the Board with sufficient time for him to prepare for his appeal as the majority of the documents were in English and due to his limited skills in that language and was unable to find a reasonably cheap interpreter to assist him to have a better understanding of what was happening that led to his credibility being found questionable that it was an unfair hearing.

10.These are however all just broad and vague assertions of the Applicant containing a few key words or phrases but without any particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way did the Board unlawfully fetter its discretion or act in a procedurally unfair manner, or what source of news relied on by the Board were not officially recognized or were hearsay or outdated. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge.

11.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.

12.The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided to him late for his appeal hearing before the Board which consisted of documents mostly in English thereby given him insufficient time to prepare for his appeal.

13.Even if it is true that the hearing bundle indeed came to him late as alleged, and the Applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his NCF, records of his screening interviews and the Director’s decisions should be well familiar to the Applicant as they had earlier all been made available to him when he still had legal representation, whilst his NCF was completed on his own instructions with legal assistance, and that at his oral hearing he never raised any issue or requested the Adjudicator for further time to enable him to better prepare for his appeal. As such I do not find anything amiss arising from the hearing bundle for the Applicant in his appeal before the Board, and that there is no merit in this complaint of his either.

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 on 27 September 2022 filed an affirmation requesting to withdraw his application as he no longer has any problem returning to his home country.

17.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 in view of his latest confirmation of no problem returning to his home country, 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