Sahota Palwinder Singh v. Torture Claims Appeal Board

HCAL 1764/2019

[2023] HKCFI 2360

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1764 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 35-year-old national of India who entered Hong Kong illegally on 24 September 2016 with his wife and his then 3-year old son, and together they surrendered to the Immigration Department on 26 September 2016 when they jointly raised a non-refoulement claim on the basis that if they returned to India they would be harmed or killed by the Applicant’s uncles over some land dispute with the Applicant and/or by some of the Applicant’s customers over their business disputes.  The Applicant and his family were subsequently released on recognizance pending the determination of their claim.

2.The Applicant was born and raised in Village Hakimpur, Teh. Banga, Punjab, India.  After leaving school he worked in his own car dealing business, married his wife and raised a family with his son in his home village where he also inherited a farmland from his father upon his father’s passing in 2013 on which he had hired workers to cultivate and grow crops.

3.Soon his 2 uncles started to dispute his title in the land and demanded that he handed over the farmland to them, and when he refused, they then harassed him by bribing his workers to spoil the crops and to set fire to burn them, and made death threats against him and his family that the Applicant had to seek help from the local police who however regarded his problem with his uncles as their family dispute that they should resolve amongst themselves.

4.In March 2015 the Applicant also started to experience financial problems arising from his car dealing business when he was unable to refund his customers for the money deposited by them for purchasing cars after his partner had absconded with all the money and disappeared that 3 of his customers also made threats against him.   

5.When the Applicant decided to sell his farmland so as to refund his customers, his uncles tried to prevent him by coming with their men to attack him and his wife by beating them with iron bars that both of them lost consciousness and were subsequently taken to the hospital for medical treatments.

6.Upon their discharge from the hospital, they became fearful for their lives, and so the Applicant and his family fled to Phagwara and then to Ludhiana, and on 31 August 2016 they departed India for China, and from there they later sneaked into Hong Kong and raised their joint non-refoulement claim for protection, for which they jointly completed a Non-refoulement Claim Form (“NCF”) on 2 February 2017 with legal representation from the Duty Lawyer Service (“DLS”) but failed to attend the scheduled interview before an immigration officer due to alleged medical reason of the Applicant.

7.By a Notice of Decision dated 5 April 2017 the Director of Immigration (“Director”) rejected the claim of the Applicant and his family on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Torture Risk”), risk of their 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 claims of the Applicant and his family and assessed the level of risk of harm from his uncles or his customers upon their return to India as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no reliable evidence of any real intention of his uncles or his customers to seriously harm or kill the Applicant or his family, that in any event they were private land or monetary disputes between them without any official involvement that state or police protection would be available to the Applicant and his family 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 with his wife and son to other areas of the country away from his home district in large cities such as Delhi or Mumbai where it would be difficult if not impossible for anyone to locate them.

9.On 11 April 2017 the Applicant and his family lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which the Applicant and his wife attended an oral hearing on 20 December 2017 before the Board during which they elected not to give any further evidence after confirming their claims based on the materials given earlier to the Director and despite being advised by the Adjudicator to do so or to answer questions arising from certain discrepancies found in their claims.  On 24 May 2019 their appeal was dismissed by the Board which also confirmed the Director’s decision.

10.In its decision the Board found inconsistencies discrepancies and exaggerations in the claims of the Applicant and his wife in the materials earlier provided to the Director and available before the Board but which the Applicant or his wife declined to answer or clarify in their appeal before the Board that it doubted their claims of fear of harm from the Applicant’s uncles or customers that caused them to leave their home country with their son to come to Hong Kong, and that in any event they were private land or monetary disputes between the Applicant and his uncles or customers without any official involvement that state or police protection would be available to the Applicant and his family upon their return to India as well as reasonable internal relocation for them to move safely to other part of the country away from their home district without any risk of being located that their claims for non-refoulement protection failed on all applicable grounds.    

11.On 25 June 2019 the Applicant for himself only filed a 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 is not fair but without providing any details or particulars or elaboration as to how it is 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 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, 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.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.Moreover, the Applicant recently on 9 August 2023 filed an affirmation requesting to withdraw his application as his problem in his home country has now been solved.

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 no further problem returning to his home country, I accordingly dismiss his leave application.

Dated the19^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