BHARE AMANDEEP SINGH v. DIRECTOR OF IMMIGRATION

HCAL 81/2018

[2020] HKCFI 731

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 81 of 2018

     Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 33-year-old national of India who arrived in Hong Kong on 1 October 2015 with permission to remain as a visitor up to 15 October 2015 when he did not depart and instead overstayed until 19 October 2015 when he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his father’s creditor arising from their dispute over the repayment of his father’s loan. The Applicant was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born in his grandparents’ home in Chak Mahantan Wala, Firozepur, Punjab, India but was raised in Village Lopon, Tehsil Nihalsinghwala, District Moga, Punjab, India where he lived with his parents and siblings.

3.  After leaving school he worked as a cook in a hotel in Moga but continued to live with his parents in Village Lopon where his father owned a farmland.  In 2010 his father borrowed 50,000 rupees from Dimple, a clock seller in the Lopon market, for his farming business with no details as to when the loan was to be repaid but it was agreed between them that in the event his father was unable to repay the loan then Dimple could take possession of their house.

4.  One day in mid-2012 Dimple came to the Applicant’s home with his men demanding repayment of the loan, but as his father was not in the house, Dimple then threatened his family that he would take the house as the loan had remained unpaid, and started to throw and break the furniture and household items before proceeding to beat the Applicant with wooden sticks.  Eventually Dimple left with his men after warning the Applicant’s mother and her family that if the loan was not repaid soon, he would come back to kick them all out and to take over their house.

5.  Afterwards the Applicant’s parents made a complaint of Dimple’s threats to the local police, but instead they were arrested as Dimple had already made a false charge of trespassing against them for remaining in the house which had been repossessed by him after the Applicant’s father failed to repay his loan, and that they were only released on bail one month later.

6.  Upon their release the Applicant’s parents filed a court action against Dimple over their house and successfully obtained an order to allow them to return to their house pending the determination of the case, but Dimple would continue to send his men to harass and threaten the Applicant’s family, and when the Applicant’s father offered to repay his loan in cash, Dimple refused and insisted that it was too late and that he just wanted the house.

7.  Given the persistent harassments and death threats from Dimple, the Applicant’s parents decided that it was no longer safe for the Applicant to remain in India, and so they arranged for him to depart on 1 October 2015 for Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 8 June 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

8.  By a Notice of Decision dated 22 December 2016 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all 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 (“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 all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from Dimple and his men upon hisreturn to India as low due to the low intensity and frequency of past ill-treatment from them,that there was no reliable evidence that they were after the Applicant as it was a private monetary dispute between his father and Dimple, that his parents and other family memberswere still residing safely in their house since his departure for Hong Kong, that in the absenceof 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 populationof 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 work experience to move to other part of India away from his home district in large cities such as Delhi or Mumbai where it would be difficult if not impossible for Dimple or his men to locate him.

10.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 21December 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 5 January 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

11.  In its decision the Board accepted the Applicant’s account of the dispute between Dimple and his family, but found no substantial grounds that he will face a real risk of ill‑treatment as claimed at the hands of Dimple or his men if the Applicant were to return to India, and given the fact that his parents and family have not been harmed by Dimple or his men since he left India and that his parents had won their court case against Dimple,and with state protection available that it concluded that the Applicant’s claim for non- refoulement protection failed on all applicable grounds.

12.  On 16 January 2018 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, and in his supporting affirmation of the same date he merely stated that he wanted to review the Board’s decision because it was unfair and unreasonable, but without providing any particulars or specifics or elaborations why it was so.  In the absence of any error of law or procedural unfairness in his process before the Board or in its decision being identified by the Applicant, I do not find any reasonably basis for him to challenge the finding of the Board. 

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.  The fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim 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.

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 I accordingly refuse his leave 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