Singh Gurinder v. Torture Claims Appeal Board

HCAL 1747/2020

[2023] HKCFI 2321

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1747 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 42-year-old national of India who arrived in Hong Kong on 13 June 2019 as a visitor with permission to remain as such up to 27 June 2019 when he did not depart and instead overstayed, and was arrested by police some 7 months later on 28 January 2020, for which he was subsequently convicted and sentenced to prison for 2 months. After his discharge from prison and was referred to the Immigration Department for deportation, he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by some local supporters of the political party Indian National Congress (“INC”) as he supported their rival Shiromani Akali Dal (“SAD”). 

2.The Applicant was born and raised in Pandori Gola, Tehsil and District Tarn Taran, Punjab, India.  After leaving school, he worked as a farmer in his home district, got married and raised a family with 3 children, and followed his family’s tradition to support SAD regularly attended their local activities but without holding any official post in the party.

3.In February 2018 during the election of village council in his home village, the Applicant and his family were approached by some INC people to vote for their candidate, but when they refused, and were on their way to vote for the SAD candidate, the Applicant and his cousin were attacked by a group of INC supporters during which the Applicant was shot in the stomach, and was taken to the hospital for an operation where he was hospitalized for 7 weeks.

4.After his discharge from the hospital, and when the police failed to carry out any proper investigation into the shooting, the Applicant on his father’s advice left his home village to take shelter in his sister’s place in Amritsar.

5.However, after another attack by INC supporters in June 2018 with an axe that he suffered a head injury which required medical treatment in a clinic, the Applicant felt it was no longer safe to main in India, and so in February 2019 he departed for China where he started some business selling mobile phones to make a living, and in June 2019 he travelled to Hong Kong where he subsequently overstayed, 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 2 June 2020 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

6.By a Notice of Decision dated 23 June 2020 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”).

7.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 INC supporters upon his return to India as low and unlikely to materialize 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 the Applicant or to have any adverse interest in him given 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 3.1 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 New Delhi or Mumbai where it would be difficult if not impossible for anyone to locate him.

8.On 6 July 2020 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 17 August 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 26 August 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board accepted the Applicant’s claim of past disputes with certain local INC supporters over some election disputes but found no evidence or reason for them to specifically target him or to continue to have any adverse interest in him given that he was just an ordinary SAD supporter, and that in any event in the absence of 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 district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.    

10.On 31 August 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 Board reached its decision wrongly in assessing his Non-refoulement Claim;

(2) That the decision was not reasonable or fair as required by the Wednesbury test;

(3) That the Board failed to recognize that 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.

11.Those grounds are however just some broad and vague assertions of the Applicant containing a few key words or phrases but without any necessary or relevant 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 Board reach the decision wrongly or that the decision was not reasonable or fair, or what relevancy were extra-judicial killings relevant to his claim. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable 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 correctly 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.                

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.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and accordingly I refuse his leave application.

Dated the 13^th day of September 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