GILL SUMIT v. TORTURE CLAIMS APPEAL BOARD

HCAL 1267/2019

[2024] HKCFI 1353

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1267 OF 2019

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;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 29-year-old national of India who arrived in Hong Kong together with his elder sister on 17 July 2014 but when they were refused entry by the Immigration Department, they each raised a non-refoulement claim for protection on the same basis that if they returned to India they would be harmed or killed by their paternal uncle over a land dispute between their father and the uncle in their home district. They were subsequently released on recognizance pending the determination of their claims.

2.  The Applicant was born and raised in Kalaish Nagar, Ludhiana, Punjab, India. After leaving school with an university diploma in mechanical engineering, he continued to reside with his parents and siblings, and did farming on his father’s farmland in his home district but which was coveted by his paternal uncle who often demanded for a share of the land despite the fact that he already owned other farmland in the same neighborhood.

3.  To avoid further dispute with his uncle, his father in March 2014 transferred his farmland to the Applicant and his elder sister in equal share at the Land Registration Office in Jalandhar.

4.  However, shortly thereafter his uncle came to demand for his share of the farmland, and when the Applicant’s father refused and claimed that the land had already been given to the Applicant and his sister, his uncle then threatened that he would have them killed before leaving angrily.

5.  A few days later while the Applicant was on his motorcycle going to town, some unknown men also on motorcycles gave chase and forced him off the bike and then attacked him with wooden sticks, but the Applicant managed to make his escape without serious harm.

6.  However, several days later the Applicant was again attacked by a group of unknown men for no apparent reason that he was struck in the head with a wooden stick and lost consciousness, and was subsequently taken to a local clinic for medical treatment.

7.  As his father suspected it was his uncle who was behind these attacks, his father therefore arranged for the Applicant and his sister to leave town to hide in an aunt’s place in Gill Chauk, Ludhiana, and on 16 July 2014 the Applicant and his sister departed India for Hong Kong, and when they were refused entry they then each raised a non-refoulement claim for protection which were then separately dealt with by the Immigration Department, and for his claim the Applicant completed a Non-refoulement Claim Form (“NCF”) on 29 August 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

8.  By a Notice of Decision dated 16 October 2014 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”).

9.  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 uncle and followers 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 his uncle to seriously harm or kill him other than to press his father for a share of the land, 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 3.2 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied and highly educated young adult to move to other areas of the country away from his home district in large cities where it would be difficult if not impossible for his uncle to locate him.

10.  Similarly the Director by a separate decision also rejected the claim of the Applicant’s sister on those applicable grounds, whereupon the Applicant and his sister lodged their appeals to the Torture Claims Appeal Board (“Board”) against the respective decisions of the Director, and for which the Board directed that their appeals to be heard together on 12 March 2015 and 18 August 2015 but neither of them attended the scheduled hearings, nor did they subsequently provide any valid explanation for their failure to attend either hearing, whereupon the Board proceeded to deal with their appeals in their absence and on papers, and on 19 August 2016 the Board dismissed their appeals and also confirmed the respective decisions of the Director.

11.  In its decision the Board found material inconsistencies discrepancies and contradictions in the evidence of both the Applicant and his sister that it doubted the credibility of their claims of fear of harm from their uncle over their land dispute that caused them to leave their country to come to Hong Kong to seek protection, that the credibility of their claims were further undermined by their failure to attend the scheduled hearings so as to clarify and explain those inconsistencies and discrepancies that the Board concluded that they had failed to establish that they would be at any real or substantial risk of being harmed by their uncle upon their return to India that both their claims for non-refoulement protection failed on all the applicable grounds.

12.  Meanwhile on 6 January 2017 the Director on his own initiative in writing invited the Applicant to submit any 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 after receiving and considering the additional facts submitted by him, the Director by a Notice of Further Decision dated 7 March 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 including right to life under BOR 2 Risk being violated upon his return to India as the factual basis of his claim even on his own case simply did not engage the BOR 2 ground.

13.  On 20 Match 2017 the Applicant again lodged an appeal to the Board against this Further Decision of the Director, and for which he did on this occasion attend the scheduled hearing on 12 March 2019 before the Board and gave oral evidence for his claim and also answered questions raised by the same Adjudicator for the Board as before, and that he also confirmed that his elder sister had earlier in 2017 already departed Hong Kong to return to India.

14.  By a decision dated 17 April 2019 the Board again dismissed the Applicant’s appeal regarding his BOR 2 Claim and also confirmed the Director’s Further Decision upon finding similar inconsistencies discrepancies and contradictions in the Applicant’s evidence as before, and concluded that he had failed to establish a personal and real risk to his absolute and non-derogable rights under HKBOR including right to life under BOR 2 being violated upon his return to India.

15.  On 10 May 2019 the Applicant filed his Form 86 for leave to apply for judicial review of this second decision of the Board on his BOR 2 Claim, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  That the Board determined his BOR 2 claim unfairly and unlawfully without giving him any screening interview or assistance for him to understand the BOR 2 ground which was detrimental to his case;

(2)  That the Board had merely adopted a formula and biased approach in assessing his claim by relying on the same COI as before in assessing the ineffectiveness of the police in India or the overall condition or the efficiency of the judicial procedures or any objective indication of any positive results in reform in his home country;

(3)  That the Applicant was not given legal representation for his BOR 2 claim which should be considered procedural unfairness; and

(4)  That the hearing bundle provided to him for his appeal before the Board without translations for the documents which are in English but which the Applicant was not familiar with and without knowing their contents were detrimental to his appeal before the Board and was procedurally unfair to him.

16.  These are however just some vague and bare 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 in what way was the Board biased against him or which relevant COI were being wrongfully used against him in the assessment of his claim. As such, and as none of these assertions were properly 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.

17.  As for his complaint of not given another screening interview for his BOR 2 Claim, the Applicant was factually incorrect as the record clearly shows that he did attend an oral hearing before the Board during which he was able to give oral evidence and to answer questions raised of his BOR 2 Claim as evidenced in the Board’s decision. As such there is simply no basis for this complaint of his.

18.  As for his complaint of not given legal representation for his appeal to the Board, the Court of Appeal has already held that neither the high standards of fairness laid down in Probakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration, HCAL 51/2007 prescribed that a CAT or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14; Re Zuhid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; Re Lopchan Subash [2018] HKCA 37; and Re Zagar Muazam [2018] HKCA 176.

19.  As the Applicant already had the benefit of free legal representation from DLS in presenting his claim to the Director earlier as regard his claim under the other grounds, and was able to testify and make proper representations at his appeal hearing for his BOR 2 Claim before the Board and to answer questions raised of his claim by the Adjudicator without difficulty, I do not find anything amiss arising from the lack of legal representation for him in his appeal to the Board, nor do I find his such complaint reasonably arguable for his intended challenge.

20.  As regard his remaining complaint of not provided with translations of the documents in the hearing bundle for his appeal to the Board which were in English that he claimed to be unable to read and hence it was procedurally unfair and unreasonable to him, and leaving aside the fact that he has a university diploma, the fact is that he was earlier able to respond to the Director’s written invitation to submit additional facts relevant to his BOR 2 Claim and did do so by putting in his written submissions in English to the Director, and that as noted above he was also able to give evidence and make his representations to the Board without any difficulty, and that he never raised any issue regarding any language problem during the hearing to the Adjudicator, I am unable to find any merits in this complaint of his either.

21.  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.

22.  In the Applicant’s case, the Board rejected his BOR 2 Claim essentially on its finding that even if the claimed risk were real that on the factual basis of his own case that it simply did not engage the BOR 2 ground due to its limited scope. As such, and in the absence of any error of law 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 to challenge the finding of the Board.

23.  Furthermore, the fact is that it has also been established by the Director in his earlier decision that the risk of harm in the Applicant’s claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

24.  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 under all the applicable grounds.

25.  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.

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