Sukhpuneet Singh v. Torture Claims Appeal Board

HCAL 1352/2021

[2023] HKCFI 318

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1352 of 2021

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 28-year-old national of India who entered Hong Kong illegally on 12 January 2016 and surrendered to the Immigration Department on 21 January 2016 when he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his uncles over some 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 Tarpai, Amritsar, Punjab, India where he inherited a farmland in his home village from his father but which was coveted by his uncles who demanded that he should share the land with them that had led to numerous conflicts within the family, including several incidents when the Applicant was attacked by his uncles with wooden sticks and other weapons that he suffered various injuries which required medical treatments at the hospital.

3.To avoid such further attacks the Applicant in 2014 went to work in Dubai until October 2015 when he returned to his home village in India, but after another 2 attacks by his uncles in late 2015, the Applicant fled to his aunt’s place in Bihar, and then to a friend’s place in Jalandhar.

4.However, one day in December 2015 he was located by his uncles who threatened to kill him if he still refused to give up his land to them, the Applicant felt it was no longer safe to remain in India, and so on 8 January 2016 he departed for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 26 October 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 14 December 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”).

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 uncles upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that in any event it was a private land dispute 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 young man 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 uncles to locate him.

7.On 27 December 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 16 June 2021 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 17 August 2021 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 claim of threats from his uncles over their land dispute in his home village but found that it was a private dispute within the family 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 away from his home district to other part of the country without any risk of being located by his uncles that his claim for non-refoulement protection failed on all applicable grounds.

9.On 27 September 2021 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 repeated his claim as before that his life is in danger in his home country but without putting forth any proper ground for his intended challenge. 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.

10.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.

11.In the present 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 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.

12.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.

13.Furthermore, the Applicant recently filed an affirmation requesting to “stop” his case as he wants to return to his home country.

14.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 his wish to return 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