Sukhwinder Singh v. Torture Claims Appeal Board

HCAL 479/2022

[2023] HKCFI 319

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 479 of 2022

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 29 September 2014, and when he was refused entry by the Immigration Department, he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by certain local supporters of rival political party Shiromani Akali Dal (“SAD”). He was subsequently released on recognizance pending the determination of his claim.

2.The gist of the Applicant’s case is that he was born and raised in Village Sahnipur, Tehsil Dudden Sadar, District Patiala, Punjab, India where he worked as a steel fixer, and supported the political party Indian National Congress Party (“INC”) regularly attended their local meetings and rallies without holding any official post in the party, but while he was assisting in INC’s campaign activities during the 2014 General Election, he and his fellow INC supporters came into violent conflicts with the local SAD supporters, and after sustaining injuries during several mass brawls between the 2 groups of supporters, the Applicant fled from his home village to another town, and eventually came to Hong Kong and raised his non-refoulement claim for protection with legal representation from the Duty Lawyer Service (“DLS”).

3.By a Notice of Decision dated 24 November 2014 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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”).

4.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 those local SAD supporters 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 or reason for them to specifically target the Applicant for harm given that he was just an ordinary INC supporter without any official post in the party, that in the absence of 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 where it would be difficult if not impossible for those local SAD supporters to locate him.

5.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, for which he gave oral evidence and answered questions regarding his claim before the Board, and on 12 March 2015 his appeal was dismissed by the Board upon finding his evidence as to his political involvement in INC vague, inconsistent and unreliable that it did not accept that he had any well-founded fear of harm from those local SAD supporters upon his return to India.

6.Meanwhile on 14 March 2017 the Director on his own initiative invited the Applicant to submit any additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”), and after receiving and considering such additional information from him, the Director by a Notice of Further Decision dated 8 May 2017 also rejected the Applicant’s BOR 2 Claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under BOR 2 being violated upon his return to India.

7.On 1 August 2017 the Applicant again lodged an appeal to the Board against this Further Decision of the Director, but as his Notice of Appeal was filed outside the 14-days period required by Section 37ZS (1) of the Immigration Ordinance, and in pursuance of Section 37ZT(2) of the Ordinance proceeded to decide as a preliminary decision without a hearing whether to allow the late filing of the Applicant’s Notice of Appeal, and by a decision dated 18 July 2018 the Board refused to allow the late filing of the Applicant’s Notice of Appeal.

8.The Applicant on 30 July 2018 under HCAL 1496/2018 sought leave to apply for judicial review of the Board’s refusal to allow the late filing of his appeal, which was granted by this Court on 10 August 2020 upon finding that the Board had failed to take into account the merits of his appeal in its decision, and on 29 April 2021 by consent of the parties, this Court quashed the Board’s decision and directed that the Applicant’s appeal against the Further Decision of the Director regarding his BOR 2 Claim be remitted to the Board for determination by another Adjudicator (see HCAL 1496/2018 [2020] HKCFI 1821).

9.On 30 December 2021 the Applicant attended an oral hearing before the Board with his lawyer from DLS during which he elected not to give further oral evidence or to answer any question from the Adjudicator for the Board despite being invited to do so. On 28 April 2022 his appeal was dismissed by the Board which also confirmed the Further Decision of the Director.

10.In its decision the Board found the information previously provided by the Applicant to the Director and in the appeal bundle before the Board inconsistent, unreliable and incredible in the absence of any explanations or clarifications from him in oral evidence that it did not accept that the Applicant would face any real risk of his absolute and non-derogable rights under BOR 2 being violated upon his return to India, and that in any event even if such risk is real that it is a localized one that reasonable internal relocation would be available for him to move safely to other part of the country away from his home district without any risk of being located by anyone that his claim for non-refoulement protection also failed on the BOR 2 ground.

11.On 15 June 2022 the Applicant again filed a Form 86 for leave to apply for judicial review of this decision of the Board, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he just stated that the Adjudicator made many mistakes in his decision but without identifying any such mistakes or providing any details or particulars or elaboration as to how the Adjudicator did so. As such I do not find any of such complaints reasonably arguable, and in the absence of any error of law or irrationality or procedural unfairness in his process before eth Board or in its decision being clearly and properly identified by the Applicant, nor do I find reasonably arguable basis for him to challenge the Board’s decision.

12.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.

13.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 43 – 88 of its decision and in the absence of any explanations or clarifications form the Applicant despite being invited to do so by the Adjudicator for the Board, 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.

14.The fact is that it has also been established by both the Director and the Board in their respective decisions that the risk of harm in the Applicant’s claim if real 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 on all applicable grounds.

16.Furthermore, the Applicant recently on 14 October 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 given his latest confirmation of having no problem returning to his home country, I accordingly dismiss his leave application.

Dated the 2^nd day of February 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