Jasvir Singh v. Torture Claims Appeal Board

HCAL 889/2019

[2023] HKCFI 322

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 889 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 31-year-old national of India who entered Hong Kong illegally and surrendered to the Immigration Department on 14 November 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 former girlfriend’s family who objected to their relationship and/or by his fellow villagers for bringing dishonor to the community in his home village. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Sharakpur, Tehsil Guhla, Kaithal, Haryana, India where he met his girlfriend at school in 2014 and started their relationship, but which was objected to by their respective families due to their different caste and religions, and after receiving threats from her family and that he was subsequently driven out of his home village by the villagers, the Applicant and his girlfriend eloped to Chandigarh to take shelter in a friend’s place.

3.However, about one week later his girlfriend’s elder brother came with some unknown men armed with iron rods and wooden sticks to beat the Applicant and his girlfriend until they lost consciousness.

4.When he eventually regained his consciousness, the Applicant was told by his friend that his girlfriend had been taken away by her brother before he was brought to the local hospital for medical treatments.

5.Upon his discharge form the hospital, the Applicant was taken by his friend to a remote area to hide from his girlfriend’s family, but later when he was told that his girlfriend had subsequently died from her injuries, and that her family had sworn to take revenge against him, the Applicant fled to Delhi, and on 11 November 2016 he departed India for China, and from there he later sneaked into Hong Kong, and upon surrendering to the Immigration Department, he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 26 May 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 15 June 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 found no substantial ground for believing that there will be any real risk of him being harmed or killed by his girlfriend’s family or his fellow villagers upon his return to India due to the low intensity and frequency of past ill-treatment from them, that it is not accepted that there is any evidence of any real intention of them to seriously harm or kill the Applicant or that they would still have any adverse interest in him after all these years since he left the country, that in any event it was a private personal dispute between them without any official involvement 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 1.28 billion people spread across a vast territory of more than 2.9 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 Mumbai where it would be difficult if not impossible for anyone to locate him.

8.On 26 June 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 13 February 2019 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 serious inconsistencies and discrepancies in the Applicant’s evidence that they undermined the reliability and credibility of his claim of fear of harm from his former girlfriend’s family and fellow villagers that caused him to flee his home country for Hong Kong, that in any event his problems with them were private personal 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 by anyone that his claim for non-refoulement protection failed on all applicable grounds.

10.On 1 April 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 or in his supporting affirmation of the same date in which he just stated that he is not satisfied with 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 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.

13.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.

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 I accordingly refuse his leave application.

Dated the 3^rd 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