Manpreet Singh v. Torture Claims Appeal Board

HCAL 598/2020

[2023] HKCFI 2861

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 598 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 43-year-old national of India who arrived in Hong Kong on 24 June 2005 as a visitor with permission to remain as such up to 8 July 2005 when he failed to depart and instead overstayed, and was arrested by police more than 14 months later on 23 September 2006.  After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to India he would be harmed or killed by his father’s creditors over his father’s debts, and after his torture claim was rejected, he then sought non-refoulement protection on the same basis.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Ferozepur City, Punjab, India.  After leaving school he worked as a factory worker and an electrician before assisting in his father’s grocery store in his home district.

3.In 2002 or 2003 in order to meet the medical expenses of members of the family, his father borrowed loans from various persons including some local money-lenders with connections with gangsters, for which his father had to make monthly interest payments or loan instalments from income of the grocery store, and when it was time to pay off the principle loans, his father planned to sell his lands to come up with the money but was unable to do so due to a sharp decline in their value.

4.Soon his father’s creditors started to lose their patience and made threats against his father that one day his father just ran away from home and disappeared, and when they were unable to locate his father, those creditors turned their threats against the Applicant, and after being threatened and beaten by men sent by those creditors on 2 occasions, the Applicant became fearful for his life and fled from his home to Mukatsar City to hide in a friend’s place, and in March 2005 he departed India for Singapore and China before eventually arriving in Hong Kong in June 2005 when he subsequently overstayed, and upon his arrest by the police he then raised his torture claim, and after it was rejected he sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 22 November 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 21 December 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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 father’s creditors 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 of any real intention of them to seriously harm or kill the Applicant over his father’s debts or any reason for them to still have any adverse interest in him after all these years since he left the country in 2005, that in any event they were private monetary disputes between his father and his father’s creditors 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 areas of the country away from his home district in large cities such as Delhi where it would be difficult if not impossible for anyone to locate him.

7.On 2 January 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 20 March 2020 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.

8.In its decision the Board accepted the Applicant’s claim of threats from his father’s creditors but found no reliable evidence of any real intention of them to seriously harm or kill the Applicant over his father’s debts or any reason for them to still have any adverse interest in him after all these years since he left the country in 2020, and that in any even they were private monetary disputes between his father and his father’s creditors 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 district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.    

9.On 14 April 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. 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 his 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.Moreover, the Applicant recently filed an affirmation stating that he wants to withdraw his application but without giving any reason or explanation for doing so.

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 withdrawing his application, I accordingly dismiss his leave application.

Dated the 7^th day of November 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