Jagdev Singh v. Torture Claims Appeal Board

HCAL 637/2019

[2023] HKCFI 200

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 637 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 Applicant:

1.The Applicant is a 40-year-old national of India who arrived in Hong Kong on 10 July 2015 as a visitor with permission to remain up to 24 July 2015 when he did not depart and instead overstayed, and on 28 July 2015 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his paternal uncles over a land dispute in his home village. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Amritsar, Punjab, India. After leaving school he worked as a farmer on the farmland in his home village which his father inherited from his grandfather and which was right next to the land of his 2 paternal uncles.

3.One day in 2013 while he was working on the farmland, his 2 uncles approached him and demanded him to leave the farmland to them, and when the Applicant refused, they tried to attack him but the Applicant managed to escape from the scene, of which he did not report to the police.

4.Two months later in 2013 while he was on his way home from the farmland, two unknown men approached him and demanded that the farmland be given to his uncles, and when the Applicant refused, they then beat him with wooden sticks, and before they left, they warned that he would be killed next time if he still refused to transfer the land to his uncles.

5.After the assault the Applicant became fearful for his safety, and moved to Jammu in early 2014 to take shelter in a friend’s place, and in 2015 he then moved to Bhutan, but as he still feared for his life, he departed India on 9 July 2015 for Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 9 February 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 26 February 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”).

7.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 and their people 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 land 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 New Delhi and Mumbai where it would be difficult if not impossible for his uncles to locate him.

8.On 7 March 2018 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 22 November 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 28 February 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found significant inconsistencies and discrepancies in the Applicant’s evidence as to his alleged dispute with his paternal uncles that it doubted the credibility of his claim of fleeing his home country for Hong Kong, that on his own admission that the legal title of the farmland in dispute was in fact registered in his mother’s name that the Applicant had no legal interest while she is still alive that there is no reason for his uncles to demand for the land from him or to make any threats against him, and on his own evidence that his uncles had never raised any issue with his mother over the land or made any threats against her that it concluded that there is no truth in the Applicant’s claim of threats from his uncles over his mother’s farmland or that he would face any risk of any sort from anyone upon his return to India that his claim for non-refoulement protection failed on all applicable grounds.

10.On 6 March 2019 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, and in his supporting affirmation of the same date he just stated that he rejects the decision but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for 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.

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.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 18 – 41 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, 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.

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

14.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.

15.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, I accordingly refuse his leave application.

Dated the 19^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