Navdeep Singh v. Torture Claims Appeal Board

HCAL 1442/2020

[2023] HKCFI 401

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1442 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:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 39-year-old national of India who entered Hong Kong illegally on 19 January 2015 and was arrested by police on 26 February 2015. 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 the village head of his home village over their election dispute. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Mallah, Tehsil Khadur Sahib, District Tarn Taran, Punjab, India. After leaving school he worked as a farmer, got married and raised a family with 2 children in his home village.

3.In early 2014 during an election for the village head in his home village, the Applicant and his family were approached by the incumbent village head Sukhwant to vote for and re-elect him in the election, but when the Applicant declined and indicated that he and his family preferred to vote for another candidate, Sukhwant was unhappy and left.

4.Several weeks after the election in which Sukhwant was re-elected as the village head, one evening the Applicant was ambushed and attacked by a group of unknown men with wooden sticks that he suffered cuts and bruises all over his body until those men were intervened by other villagers who then fled from the scene.

5.Although those assailants did not identify themselves or say anything during the assault, the Applicant suspected that they were sent by Sukhwant to teach him a lesson for refusing to vote for him in the election, and as he feared of further attacks from them, he fled from his home village to Patti to take shelter in a relative’s place.

6.In mid-2014 he moved to Delhi, but as he still feared for his life, he therefore departed India on 19 January 2015 for China, and from there he later sneaked into Hong Kong, and after his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 5 September 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.By a Notice of Decision dated 24 September 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”).

8.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 the village head Sukhwant and his followers 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 that those unknown men were sent by Sukhwant to attack him other than his own speculation, that having won his re-election as the village head there is no reason for Sukhwant to continue to have any adverse interest in the Applicant, that in any event it was a private dispute between the 2 of 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 village in large cities such as Delhi where he had stayed before without incidents and where it would be difficult if not impossible for Sukhwant to locate him.

9.On 29 November 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 4 June 2020 before the Board during which he declined to give any further evidence or to answer questions raised of his claim by the Adjudicator for the Board despite being advised to do so. On 10 June 2020 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board found inconsistencies and discrepancies in the materials previously provided by the Applicant to the Director and in the appeal bundle before the Board which required explanation or clarification from the Applicant but which he declined to do so without any good or valid reason despite being invited and advised by the Adjudicator at his appeal hearing that the Board in such situation and on the basis of those materials doubted his claim of fear of harm from the village head for his departure of his home country for Hong Kong, and that in any event even if such risk is real in the absence of any evidence of any official involvement that state or police protection would be available to the Applicant upon his return to India if necessary as well as reasonable internal relocation for him to move safely to other part of the country away from his home village without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

11.On 10 July 2020 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 does not agree with the decision but without putting forth 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.

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 68 – 84 of its decision and in the absence of any explanation or clarification from him over the various inconsistencies and discrepancies identified by the Adjudicator at his appeal hearing and despite being advised to do so. As such 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.Furthermore, the fact is that it has also been established by both the Director and the Board in their respective 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, 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.In the premises and 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.For these reasons I am 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 10^th 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