Gursewak Singh v. Torture Claims Appeal Board

HCAL 574/2020

[2024] HKCFI 308

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 574 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:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 49-year-old national of India who arrived in Hong Kong on 22 October 2010 as a visitor with permission to remain as such up to 5 November 2010 when he did not depart and instead overstayed, and was arrested by police more than 2 years later on 6 December 2012 for the offences of theft and possession of another person’s identity card, for which he was subsequently convicted and sentenced to prison for 12 months.  After he was discharged from prison and was referred to the Immigration Department for deportation, he raised a torture claim on the basis that if he returned to India he would be harmed or killed by his 2 step-brothers over their land dispute, and after it 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 Village Gondhwal, District Ludhiana, Punjab, India.  After leaving school he farmed on his grandfather’s farmland in his home village, got married and raised a family with 2 children.

3.In the late 1990s his father abandoned his mother and married another woman in the village who subsequently gave birth to 2 sons who became the Applicant’s step- brothers, much to the displeasure of his grandfather who then disowned his father.

4.In 2007 after his father suffered a heart-attack, his father asked his grandfather to distribute the farmland between the Applicant and his step-brothers, but his grandfather refused and instead gave all the farmland to the Applicant alone in his will with only a discretion to give some of the farmland to his step-brothers if the Applicant so desired.

5.After his grandfather passed away in 2008, and that the Applicant inherited the farmland, his step-brothers started to pester him to give them some share in the farmland, and when the Applicant refused, they then threatened him and on one occasion together with their men beat him with hockey sticks that the Applicant suffered cuts and bruises all over his body and was subsequently taken by his neighbours to the local clinic for medical treatments.

6.To avoid further threats from his step-brothers, the Applicant in May 2008 went to Doha in Qatar to work until September 2010 when he returned to his home village in India.          

7.However, shortly thereafter the Applicant started to receive threatening phone calls from his step-brothers that they would kill him if he still refused to give them some of the farmland, he then became fearful for his life and fled to Patiala City to take shelter in a friend’s place, and on 22 October 2010 he departed India for Hong Kong where he subsequently overstayed, and upon his arrest by the police he raised his torture claim, and after it was rejected he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 12 April 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

8.By a Notice of Decision dated 17 May 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”).

9.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of him being harmed or killed by his step-brothers over their land dispute 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 other than to press him to yield to their demand for some of the farmland, that in any event it was a private land dispute between them within the family 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 his step-brothers to locate him.

10.On 28 May 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 17 January 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 26 March 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision.

11.In its decision the Board accepted the Applicant’s claim of threats from his step- brothers over their land dispute but found no reliable evidence of any real intention of them to seriously harm or kill him, and that in any event it was a private land dispute between them within the family 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.    

12.On 9 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 in which he just repeated his claim that his life is still at risk that he cannot return to his home country, 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.

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 also been correctly 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, 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 the reasons given I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his leave application.

Dated the 26^th day of January 2024

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