Lovepreet Singh v. Torture Claims Appeal Board

HCAL 597/2020

[2023] HKCFI 1677

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 597 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 39-year-old national of India who arrived in Hong Kong on 29 November 2015 as a visitor with permission to remain as such up to 13 December 2015 when he did not depart and instead overstayed, and on 22 December 2015 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 a fellow villager who was a gangster and also with political connections over their land dispute 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 Dashmesh Nagar Lola, Amritsar, India where he owned some farmland inherited from his father, and on which he worked as a farmer to make his living.

3.One day in 2014 while he was travelling away from his home village, the Applicant was told that a fellow villager Harmanpreet Singh (“HS”) together with some men came on to occupy his farmland, and when the Applicant rushed back home, he found that HS and his men had already left, but his crops and equipment had all been damaged.

4.On the following day HS again came with his men to demand for possession of the farmland as he disputed the Applicant’s ownership therein, and when the Applicant refused, it led to a heated argument, and that HS and his men left only after the Applicant had threatened to report the matter to the police.

5.A few days later HS returned with his men armed with baseball bats and other weapons and attacked the Applicant that his suffered a broken arm and bruises all over his body, and before they left, HS threatened that next time the Applicant would be killed.

6.Several months later while he was on his way to a friend’s wedding ceremony, the Applicant was shot at by some unknown men from a passing vehicle but he managed to escape unharmed.

7.After the incident the Applicant suspected that it was an attempt by HS to kill him, and became fearful for his life, the Applicant fled from his home village to hide in a friend’s place, and thereafter moved from town to town, and on 29 November 2015 he departed India 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 12 November 2018 and attended screening interview before the Immigration Department with legal representation.

8.By a Notice of Decision dated 6 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”).

9.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real risk of him being harmed or killed by HS or his men upon his return to India 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 kill him, that in any event it was a private land dispute between 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 2.9 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 Delhi where it would be difficult if not impossible for HS to locate him.

10.On 21 December 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 19 November 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 6 April 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision.

11.In its decision the Board found multiple material inconsistencies and discrepancies in the Applicant’s evidence that it did not find him a credible witness and rejected his claim of having any land dispute with HS in his home village or that he had been threatened or attacked by HS or his men or that he had any fear from anyone that caused him to leave his country to come to Hong Kong that it concluded that he had fabricated all these so as to create a basis for his claim for non-refoulement protection which therefore failed on all applicable grounds.

12.On 14 April 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1)  That the Director and the Board reached their decisions wrongly in assessing his non-refoulement claim in that their decisions were not reasonable or fair as required by the Wednesbury test in failing to recognize that his right to life must be protected by criminal law from extra-judicial killings that he may face if deported to his home country;

(2)  That the Director had failed to appreciate or give proper weight or importance to the presence of State Acquiescence in the Applicant’s case which led to an unfair outcome of rejecting his non-refoulement claim as he was tortured at the behest of the state law enforcement agencies and the politicians that the state would be rendered liable to him by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(3)  That the Adjudicator acted unreasonable and was procedurally unfair by placing too much reliance on COI but failed to take into account the Applicant’s personal background and experience in assessing his claim;

(4)  That the Director had listed relevant COI which supported the Applicant’s aversions that the police in his country would not be able to protect but failed to give them enough weight or consideration and instead ruled otherwise against the Applicant’s case which was a clear case of unfair attitude shown by the director which in itself is enough to render his decision void;

(5)  That the Director failed to attain the high standard of fairness required by the Wednesbury test in the decision in failing to consider the Applicant’s argument that corruption and incompetency of the administration in his home country is still a very serious problem as various human rights organizations have compiled reports which stated testament to his assertions that the decision should be considered unreasonable in the scope of public law;

(6)  That the Adjudicator was procedurally improper and/or unfair when assessing whether to accept the explanations provided by the Applicant and unreasonably required him to respond to questions that he was not in a position to offer any response;

(7)  That the Adjudicator failed to take into account the nexus of political parties and official corruption which exist in the Applicant’s home country making persecution effectively prosecution by the state;

(8)  That the Adjudicator made a ruling to dismiss the Applicant’s appeal/petition based on findings which the Adjudicator ought to have allowed the appeal and therefore the decision was irrational.

13.These are however just some vague and bare assertions of the Applicant containing a few key words or phrases but without any particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy was state acquiescence or extra-judicial killings to his claim, or when had he ever been tortured by the police or state law enforcement agencies or politicians when the factual basis of even his own case at the highest was a private land dispute with his fellow villager without any evidence of any official involvement. As such, and as none of these assertions were elaborated or presented with any particulars or specifics by the Applicant, I do not find any of them reasonably arguable for his intended challenge or any merits in his intended application.

14.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.

15.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 25 – 37 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.

16.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.Furthermore, the Applicant has recently filed an affirmation requesting to withdraw his application as all his problems have been solved and that he just wants to return to his home country as soon as possible.

19.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 more problem for him to return to his home country, I accordingly dismiss his leave application.

Dated the 28^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