Jatinder Singh v. Torture Claims Appeal Board

HCAL 1774/2020

[2023] HKCFI 1625

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1774 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;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 34-year-old national of India who entered Hong Kong illegally on 3 June 2017 and surrendered to the Immigration Department on 5 June 2017 when he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by certain local supporters of the political party Indian National Congress (“INC”) as he supported their rival Shiromani Akali Dal Party (“SAD”). He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Aujla Jogi, Kapurthala, Punjab, India. After leaving school he worked in farming and cultivation, and supported SAD regularly attending their local activities and putting up banners and posters for their election campaigns.

3.During an election in January 2017 the Applicant and his fellow SAD supporters came into a confrontation with the local INC supporters who proceeded to attack them with wooden sticks and other weapons that the Applicant suffered injuries which required medical treatments at the hospital.

4.Later when INC won the election, their supporters started to intimidate and harass the local SAD supporters, and so the Applicant fled to Saharanpur Uttar Pradesh to take shelter in a relative’s place, but later when he heard from his parents that some INC supporters had come to their home looking for him, the Applicant felt it was no longer safe to remain in India, and so in early June 2017 he departed for China, and from there he sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 15 November 2018 with legal representation but failed to complete his screening interview before an immigration officer due to alleged medical reason.

5.By a Notice of Decision dated 12 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 those local INC supporters 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 or reason for them to specifically target him or to have any adverse interest in him given the fact that he was just an ordinary SAD supporter without holding any official post in the party, that in any event in the absence of 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 areas 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.

7.On 21 December 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 13 July 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 31 July 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence and his lack of knowledge in the political ideology and policies of SAD that it doubted and rejected his claim of fear of harm from those local INC supporters that caused him to leave his country to come to Hong Kong, that in any event given the fact that he was just an ordinary SAD supporter without holding any official post in the party that there was no evidence or reason for the INC supporters to target him or to have any adverse interest in him after all these years since he left the country, and that such risk was not supported by the relevant COI on the current political situation in India that it concluded that the Applicant had failed to establish any risk of harm that he would face from anyone upon his return to India that his claim for non-refoulement protection failed on all applicable grounds.

9.On 4 September 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision in which he just stated that the Board reached the decision wrongly in assessing his non-refoulement claim in that the decision was not reasonable or fair as required by the Wednesbury test as his right to life must be protected by criminal law from extra-judicial killings that he may face if deported back to his home country but without providing any relevant details or particulars or elaboration as to how the Board had so erred in its findings or decision or how or why he would face extra-judicial killings on the factual basis of his own case upon his return to India, nor was he able to do so at the hearing of 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 Board rejected his claim essentially on its adverse findings on his credibility and the absence of any evidence or basis for his alleged fear of harm for political reasons upon his return to India for the thorough and detailed analysis and reasoning set out in paragraphs 24 – 45 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, 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.

12.I note that the Applicant had claimed in his evidence before the Board of having suffered a head injury earlier in Hong Kong that might have affected his memory and his presentation of his case to the Board, but of which the Board found that the Applicant had failed to provide any medical evidence in support of his claim despite the fact that he had had legal representation during his screening process before the Director and that the alleged accident had occurred more than 2 years before his appeal hearing before the Board, and that notwithstanding any head injury that he might have suffered, the Board found him to be able to give evidence and present his case without difficulty at the hearing, and did not accept his inability to provide any coherent evidence as to the policies and ideology of SAD was due to his head injury (see [38] of Board’s decision).

13.More than 2 years later on 23 March 2023 the Court received a letter from a solicitors’ firm advising that they are representing the Applicant on Legal Aid in an Employees Compensation claim arising from an accident occurred on 1 April 2018, and according to the accompanied medical reports, the accident occurred when the Applicant fell off a truck and hit his face on the ground, resulting in a fracture to his frontal bone which required urgent surgery at Queen Mary Hospital, and that he was discharged 2 months later on 31 May 2018 with follow-up consultation in 3 months’ time but which he never attended.

14.In providing such information to the Court at that stage, as I understand, the solicitors simply just want to inform of an on-going application by the Applicant in the District Court for Employee Compensation, and that for which it is important for him to remain in Hong Kong, and which the Court is asked to take into account in deciding whether to accord priority to dealing with his leave application as requested by the Director as the Applicant is now being detained by the Immigration Department at Tai Tam Gap Correctional Institute, and hence the information provided is not to be treated in any way as evidence in support of his present application now before me for leave to apply for judicial review of the Board’s decision.

15.As such, and given the fact that the accident had occurred more than 2 years before his appearance before the Board for his appeal, and as pointed out by the Board that in the absence of any medical evidence which the Applicant could have easily obtained but never produced to the Board if it were indeed his case of a memory loss as a result of the accident which might have affected his evidence, the Board was in my judgment at the time entitled to make its findings in its decision regarding the Applicant’s credibility notwithstanding the information now available before me almost 2 years later.

16.Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

17.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.

18.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, I accordingly refuse his leave application.

Dated the 23^rd 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