Rajanpreet Singh v. Torture Claims Appeal Board

HCAL 1608/2023

[2023] HKCFI 3106

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1608 OF 2023

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 23-year-old national of India who was previously a Hong Kong resident relying on his father’s dependent visa with limited stay extended annually on certain terms and conditions and which was last extended to 1 June 2022, but after he was arrested by police on 7 August 2021 for theft and common assault for which he was subsequently convicted and sentenced to prison for 6 months, and upon the issue of a deportation order against him by the Immigration Department, the Applicant raised a non- refoulement claim on the basis that if he was deported to India he would be harmed or killed by his father’s cousins due to their dispute with his father over some land in India.

2.The Applicant was born and raised in Kapurthala, India, and after the passing away of his mother and his father subsequently married a Hong Kong resident and moved to Hong Kong, the Applicant in 2014 at the age of 14 came to Hong Kong to reside with his father based on a dependent visa subject to annual extension on certain terms and conditions.

3.After completing his secondary education in Hong Kong, the Applicant continued to reside with his father and worked as a dish washer to make his living.

4.In November 2020 he went on a trip to India for visit and stayed in Amritsar, during which he was approached by his father’s cousins who told him to warn his father to stop fighting with them over their land dispute or else they would kill the Applicant.

5.After the encounter the Applicant telephoned his father in Hong Kong who admitted of the dispute with the cousins over some land in the Applicant’s birthplace in Kapurthala, and advised that the Applicant for his own safety should immediately leave India to return to Hong Kong, which the Applicant subsequently did in February 2021.

6.However, after his dependent visa had been extended to 1 June 2022, the Applicant was arrested by police on 7 August 2021 for attempted theft and common assault, for which he was subsequently convicted and sentenced to prison for 6 months, whereupon on 30 May 2022 a deportation order was issued by the Immigration Department against him, but as he was afraid to return to India due to the threats from his father’s cousins, the Applicant raised his claim for non-refoulement protection, for which he completed a Non- refoulement Claim Form (“NCF”) on 30 March 2023 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.By a Notice of Decision dated 3 May 2023 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”).

8.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed his perceived risk of being harmed or killed by his father’s cousins 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 him over their land dispute with his father, that in any event it was a private land dispute between his father and his father’s cousins 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 1.3 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 young 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 his father’s cousins to locate him.

9.On 15 May 2023 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 3 July 2023 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 12 July 2023 his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.In its decision the Board accepted the Applicant’s claim of fear of harm from his father’s cousins due to their land dispute with his father but found no evidence of any real intention of them to seriously harm or kill the Applicant or any reason for them to do so given the fact that they have already been occupying the land since his father had left the country and moved to Hong Kong all these years, and 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 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.

11.On 11 September 2023 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he repeated his claim as before and put forward the following grounds for his intended challenge:

(1)  That the decision was not fair or reasonable in failing to recognize that the Applicant’s right to life must be protected by criminal law from the extra- judicial killings that he may face if deported back to his home country; and

(2)  That the Board had significantly relied on source of news not officially recognized or were simply hearsay without considering the hardship that the Applicant will face in his home country where he had not lived for years since he left at the age of 14.

12.These are however all just some broad and vague assertions of the Applicant containing a few key words or phrases but without any relevant or necessary 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 which source of news relied on by the Board were not officially recognized or were simply hearsay or outdated, or what relevancy were extra-judicial killings to his claim which on the factual basis of even his own case that it was a private land dispute between his father and his cousins within the family without any state or official involvement at all. As such and as none of these assertions were elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for his intended challenge.

13.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.

14.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 if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India where he was born and raised up to the age of 14 years before he left for Hong Kong and where he had visited and stayed for months on his own in the past without any problem or difficulty, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

15.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.

16.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 to grant leave and dismiss leave application.

Dated the 5^th day of December 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