Sukhdev Singh v. Torture Claims Appeal Board

HCAL 2438/2020

[2023] HKCFI 1564

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 2438 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 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 27-year-old national of India who entered Hong Kong illegally on 17 July 2016 and surrendered to the Immigration Department on 20 July 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 paternal uncle and cousins over some land dispute between their 2 families in their home district. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Talwandi Lal Singh, District Gurdaspur, Batala, Punjab, India. After leaving school he worked as a farmer in some farmland which his father inherited from his grandfather, but which his paternal uncle coveted by frequently raising issue over the distribution of the grandfather’s estate between the 2 families which often led to serious quarrels between them.

3.One day in March 2016 the Applicant returned home to find his uncle and cousins arguing with his father over the same dispute, during which his uncle threatened to kill his father while his sons beat the Applicant with wooden sticks, and before leaving they threatened that next time they would kill both the Applicant and his father.

4.After those death threats the Applicant fled to New Delhi before moving on to Jalandhar and Ludhiana, and on 12 July 2016 departed India 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 23 August 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 12 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”).

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 uncle and cousins upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that there was no evidence of any real intention of them to seriously harm or kill him, that in any event it was a private family dispute over some land between the 2 families 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 Delhi where it would be difficult if not impossible for his uncle or cousins to locate him.

7.On 24 September 2019 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 6 November 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 23 November 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board despite some inconsistencies or discrepancies in the Applicant’s evidence did not take any serious issue with his claim of fear of harm from his uncle and sons arising from their dispute with his father over some land in his home village, but found that it was a private land dispute between them within the 2 families 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 village without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

9.On 14 December 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 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 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.

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 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 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 withdraw his application as he no longer has any problem returning to his home country.

14.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 no further problem for him to return to his home country, I accordingly dismiss his leave application.

Dated the 14^th day of June 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