Harpreet Singh v. Torture Claims Appeal Board

HCAL 587/2024

[2024] HKCFI 2026

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 587 OF 2024

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 be refused.

Observations for the Applicant:

1.The Applicant is a 37-year-old national of India who arrived in Hong Kong on 23 October 2013, and when he was refused entry by the Immigration Department, he raised a non-refoulement claim for protection on the basis that if he returned to India he would be harmed or killed by certain local supporters of the political party Shiromani Akali Dal (“SAD”) as he supported their rival Indian National Congress (“INC”) and refused to join SAD.  He was subsequently released on recognizance pending the determination of his claim.  

2.The Applicant was born and raised in Village Melak Akalian, District Moga, Punjab, India.  After leaving school he worked as a farmer on his family’s farmland in his home village, and supported INC regularly attended their local meetings and activities, during which he and his fellow INC supporters were often harassed and intimidated by the local SAD supporters.

3.One night in July 2013 while he was on the way home from a local INC meeting, the Applicant was confronted by about 6 or 7 SAD supporters who demanded him to leave INC and to join their party, and when he refused, they started to punch and kick him, but the Applicant managed to flee from the scene and ran home with just some minor injuries.

4.Thereafter he reported the incident to the local police but to no avail due to lack of witnesses, and as threatening phone calls from those SAD supporters persisted, by August 2013 the Applicant was no longer able to withstand such harassments and intimidations, and fled to Madhya Pradesh to take shelter in his uncle’s place, and on 22 October 2013 he departed India for Hong Kong, and when he was refused entry by the Immigration Department, he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 8 May 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

5.By a Notice of Decision dated 26 August 2015 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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 those local SAD supporters 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 or any political reason for them to specifically target him for harm given the fact that he was just an ordinary INC supporter without any official position 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 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 New Delhi where it would be difficult if not impossible for anyone to locate him.

7.On 14 October 2015 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but as his Notice of Appeal was filed outside the 14-day period required under Section 37ZS(1) of the Immigration Ordinance, and by a decision dated 31 December 2015 the Board refused to allow the late filing of the Applicant’s Notice of Appeal.

8.Meanwhile on 26 January 2017 the Director on his own initiative invited the Applicant to submit additional facts which he may consider relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection, including any other absolute and non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk), and in the absence of any response from him, the Director by a Notice of Further Decision dated 14 February 2017 also rejected the Applicant’s BOR 2 Claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR including right to life under BOR 2 Risk being violated upon his return to India.

9.On 20 February 2017 the Applicant again lodged an appeal to the Board against this further decision of the Director, and without holding any oral hearing the Board on 30 July 2018 dismissed his appeal and confirmed the Director’s further decision.

10.On 10 August 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s second decision, for which leave was subsequently granted by Campbell-Moffat J on 20 August 2020 ([2020] HKCFI 2051), and by a Consent Order dated 5 May 2023, both decisions of the Board were brought up and quashed by the Court, and with the both appeals of the Applicant to be remitted to a differently constituted Board for fresh determination under all the applicable grounds, for which the Applicant attended an oral hearing on 6 March 2024 before the Board during which he gave oral evidence and answered questions raised of his claim by a different Adjudicator for the Board.          

11.By a decision dated 14 March 2024 the Applicant’s appeal was dismissed by the Board under all applicable grounds which also confirmed both decisions of the Director.  In this decision the Board accepted the Applicant’s claim of fear of harm from those local SAD supporters that caused him to leave his country to come to Hong Kong to seek protection, but found no reliable evidence of any real intention of them to seriously harm or kill him or any political reason to specifically target him given that he was just an ordinary INC supporter without any official post in the party, nor is it accepted that they would still have any adverse interest in him all these years since he left the country, 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 alternatives for him to move safely to other parts 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 11 April 2024 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 his supporting affirmation of the same date to which he just attached a copy of the decision without putting forth any proper ground for his intended challenge, nor was he able to do so at the hearing of his application other than a futile request without any justification for more time to provide further evidence in support of his case but without identifying what such evidence is that he had sought to provide.  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 been established by both the Director and the Board in their respective decisions that the risk of harm in his claim even 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 all these reasons 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 application.

Dated the 8^th day of August 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