Singh Neeraj v. Torture Claims Appeal Board

HCAL 1245/2024

[2024] HKCFI 3029

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1245 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 55-year-old national of India who last arrived in Hong Kong on 4 May 2015 but 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 gangster over his family’s refusal to pay extortion money to the gangster. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Faridpur, Amroha District, Uttar Pradesh, India. After leaving school he worked as a farmer in his father’s farmland in Ghajola, got married and raised a family with 2 children.

3.One of his cousins married a local gangster by the name of Ashok who often demanded money from the family in particularly from the Applicant’s father who would try to comply within his means to avoid trouble, but one day in 2002 when the Applicant’s father could no longer afford to do so and told Ashok to go away, Ashok then made some false charges to the police against the Applicant’s father who was then arrested and detained at the police station during which he was interrogated and ill-treated, and was released only after a bribe had been paid by the Applicant’s family, whereupon his father was hospitalized for several months due to ill-health so caused and later died in early 2003.

4.Several months later Ashok again came to demand for money from the Applicant’s mother, and when she was unable to pay anything, Ashok warned her that there would be bad consequences.

5.Shortly thereafter police came to arrest the Applicant and his brother, and although the Applicant was released on the same evening, his brother was subsequently sent to prison for several weeks, of which the Applicant suspected that Ashok was again behind it.

6.Fearing that eventually he would also suffer from the same fate, the Applicant in 2004 departed India for UK where he overstayed for the next several years until 2010 when he returned to India.

7.However, as the threats and harassments from Ashok had persisted, the Applicant in 2012 moved to Delhi, and in June 2014 he again departed India for various places in South East Asia, and in May 2015 when he arrived in Hong Kong but 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 12 June 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

8.By a Notice of Decision dated 19 August 2015 and a Notice of Further Decision dated 16 February 2017 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”).

9.In his decisions the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from Ashok upon his return to India as low due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of Ashok to seriously harm or kill him other than to press his family for money nor is it accepted that after all these years since he left India that Ashok would still have any adverse interest in him, 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 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 he had stayed before without incidents and where it would be difficult if not impossible for Ashok to locate him.

10.The Applicant’s appeals against the respective decisions of the Director were refused by the Board due to their late filings, but upon subsequently obtaining leave from this Court to apply for judicial review of those decisions of the Board, and upon a consent order made on 22 November 2022, both decisions of the Board were quashed and that the Applicant’s appeals were remitted to a differently constituted Board for determination, for which the Applicant attended an oral hearing on 4 June 2024 before the Board during which he gave oral evidence and answered questions raised of his claim by a different Adjudicator for the Board. On 24 July 2024 his appeals were dismissed by the Board which also confirmed the Director’s decisions.

11.In its decision the Board accepted the Applicant’s claim of fear of harm from Ashok that caused him to leave his country to come to Hong Kong to seek protection, but found no evidence or indication that after all these years that Ashok would still have any adverse interest in the Applicant, 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 by Ashok or anyone that his claim for non-refoulement protection failed on all applicable grounds.    

12.On 30 July 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 but without putting forth any proper ground for his intended challenge in his Form or at the hearing of 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 been established by both the Director and the Board in their respective decisions 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 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 5^th day of November 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