Mishra Singh v. Torture Claims Appeal Board

HCAL 3270/2019

[2023] HKCFI 1146

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3270 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 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 52-year-old national of India who arrived in Hong Kong on 27 December 2015 as a visitor with permission to remain as such up to 10 January 2016 when he did not depart and instead overstayed, and on 20 January 2016 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 uncle over their land dispute in his home district. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in District Sangrur, Punjab, India where he and his brother inherited some land in the home village from their father, but which were coveted by their paternal uncle who raised issues that those land actually belonged to him.

3.His uncle’s dispute had led to heated quarrels between the 2 families, during which threats were made against the Applicant and his brother and that his uncle also sent his followers to stop them from working on the farmland who then beat the Applicant with wooden sticks that he suffered cuts and bruises all over his body and caused him to flee to Kolkata for 8 months before he dared to return to his home village.

4.However, as his uncle and followers continued to threaten and harass him, the Applicant shortly thereafter fled to New Delhi to take shelter in a friend’s place for 2 months before returning home.

5.About one month later while he was working in his farmland, the Applicant was again attacked by his uncle and followers with wooden sticks and other weapons that he suffered injuries to his legs that required medical treatment in a local clinic.

6.After the last assault the Applicant felt it was no longer safe to remain in India, and so on 26 December 2015 he departed 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 20 September 2018 and attended screening interview before the Immigration Department with legal representation.

7.By a Notice of Decision dated 9 October 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 his uncle and 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 of any real intention of them to seriously harm or kill him, that in any event it was a private family dispute between the Applicant and his uncle 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 Mumbai where it would be difficult if not impossible for his uncle to locate him.

9.On 22 October 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 18 October 2019 before the Board but elected not to give any further evidence and also refused to answer any questions raised of his claim by the Adjudicator for the Board. On 24 October 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board found the Applicant’s refusal to answer various questions raised of his claim including the possibility of state/police protection or reasonable internal relocation being available to him upon his return to India that it undermined the credibility of his claim of fear of harm form his uncle that caused him to leave his home country for Hong Kong, and given the absence of any evidence that his uncle had ever pursued him to places where he had fled such as Kolkata or New Delhi that it is not accepted that he will face any risk of being located if he is to relocate to other part of India away from his home village that his claim for non-refoulement protection failed on all applicable grounds.

11.On 4 November 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 the decision was biased and based on irrelevant information while other information were neglected but without providing any details or particulars or elaboration as to how it was so, 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 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.

14.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.

15.Furthermore, the Applicant recently filed an affirmation requesting to withdraw his application as “everything is ok in his home country” and that he wants to go back home.

16.In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation of his wish to return to his home country, I accordingly dismiss his leave application.

Dated the 12^th day of May 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