GILL JAGRAJ SINGH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 251/2018

[2020] HKCFI 1324

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 251 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 40-year-old national of India who arrived in Hong Kong on 23 May 2014 with permission to remain as a visitor up to 6 June 2014 when he did not depart and instead overstayed until he was arrested by the police on 21 July 2014.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his paternal uncles over a land dispute and/or by the police for absconding from bail for a criminal offence of assaulting two police officers.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Bhugipura, District Moga, Punjab,India.  After leaving school he worked in different jobs and got married with a daughter.

3.  His grandfather who owned some farmland in the village passed away in 2011, and under his will the Applicant’s father received a larger portion of the land than his four brothers because it was he who took care of the grandfather when he was alive, but as his brothers were not happy with the distribution they demanded that all the grandfather’s land should be equally divided amongst all the sons, and when the Applicant’s father refused to do so or to compromise, his uncles would send threatening messages to his family.

4.  One day in April 2012 when the Applicant was working on the farmland, several unknown men appeared to demand that he stop the farming and to leave the land, and when the Applicant refused, they started to hit him with baseball bats all over his body until some neighbours intervened and brought the Applicant to hospital for treatments.

5.  On another occasion while the Applicant was travelling with his father in a vehicle into the town, some men shot at them with rifles that his father was hit in his leg but they managed to flee from the scene and that his father was later taken to the hospital for treatment. The Applicant suspected that it was his uncles who sent those men to kill them, but when he reported the matter to the police, they refused to do anything as he was unable to identify those men.

6.  Thereafter the Applicant and his family did not encounter any further incidents or any threats from his uncles, but one day towards end of 2013, the Applicant had a quarrel with some policemen in the market during which he and his friends struck the policemen with baseball bats that they were all subsequently arrested and subsequently put before the court when the Applicant was granted bail.

7.  As he became fearful that the police would take revenge against him, and as his uncles had continued to make threats against him, the Applicant decided that it was no longersafe to remain in India, and so on 20 May 2014 he departed for China, and later came to Hong Kong where he overstayed, and subsequently upon his arrest by the police he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 14 September 2016, and attended a screening interview on 7 November 2016 before the Immigration Department with legal representation from Duty Lawyer Service, during which he claimed to be unwell and requested that the screening interview be adjourned, which the immigration officer did but instead of re-scheduling another screening interview for the Applicant, the immigration officer just required him to provide a written elaboration and clarification of his claim.

8.  By a Notice of Decision dated 29 November 2016 the Director of Immigration (“the 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 his absolute and non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) 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 his uncles or the police upon his return to India as low due to the absence or low intensity and frequency of past ill-treatment from them, that his problem with his uncles was a private family dispute withoutany official involvement that state protection would be available to the Applicant if resorted to, that reliable and objective Country of Origin Information 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 wouldnot be unduly harsh for the Applicant as an able-bodied adult with work experience to move to other area in India away from his home district in large cities such as Delhi or Mumbai where it would be difficult if not impossible for his uncles to locate him, while his alleged fearof the police after he absconded from bail was not accepted as due to fear of persecution but rather of prosecution and for which he would not be entitled to non-refoulement protection.

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 25 September 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 19 December 2017 his appeal was dismissed by the Board which also confirmed the decision of the Director.

11.  In its decision the Board accepted that the Applicant had a land dispute with his uncles, and later also had an unrelated altercation with the police for which he was arrested and released on bail, but it did not accept that he suffered harassment or threats from his uncles of an intensity sufficient to give rise to a fear that he left India for Hong Kong in search of international protection, or that his problem with the police proceeded from or were influenced by political motives other than his commission of a criminal offence for which he was properly brought before a court and was granted bail to which he was entitledby law, that he subsequently absconded from bail therefore made him a fugitive from justice and hence his alleged fear was not of persecution but rather prosecution to which he would not be entitled to non-refoulement protection, and concluded that his claim failed on all applicable grounds.

12.  On 15 February 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he made the following complaints against the Director and the Board:

 (1)  that the Director failed to give him another screening interview to present his case after he was unable to attend the first one for medical reason;

 (2)  that he did not have legal assistance or representation in his appeal before the Board and was not given any translation of its decision; and

 (3)  that the process had been very unfair to him and that he was deprived of fairness in the assessment of his claim.   

13.  For his complaint under Ground (1) of not being given another screening interview by the Director after his first one was adjourned on 7 November 2016 due to a medical condition, for which he did produce a medical certificate that it was a case of gastritis, and while I agree that the Director’s reasons for refusing to schedule another screening interviewbecause “ample time and reasonable opportunities…have been given” (paragraph 10 of theDirector’s decision) when the fact is that his NCF was submitted only on 27September 2016 may appear too harsh to me and even Wednesbury unreasonable, the fact is that as has beenheld by the Court of Appeal in Re Moshsin Ali [2018] HKCA 549, the decision of the Director is no longer susceptible to judicial review once an appeal to the Board has been pursued by a non-refouilement claimant, as the Director’s decision would have been superseded by the Board’s decision, and hence it is no longer open to the Applicant to challenge the Director’s decision by way of judicial review.

14.  As for his complaint under Ground (2) of not having legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standardsof fairness laid down in Secretary for Securityv Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute rightto free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14,Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

15.  The Applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal hearing before the Board and to answer questions put to him by the adjudicator without difficulty.  I do not find anything amiss arising from the lack of legal representation in his appeal process,and I do not think this ground is reasonably arguable.

16.  As for his remaining complaint under Ground (3) of lack of fairness in the assessment of his claim, it was just a broad and vague assertion of the Applicant without any particulars or specifics or elaboration as to why or how it was so, and in the absence of which I do find this ground of the Applicant reasonably arguable either.

17.  As has been repeatedly emphasized by the Court of Appeal, the evaluation of risk of harm is primarily a matter for the Director and the Board who are entitled to make their evaluation based on the evidence available to them, and 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 properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see 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.

18.  Furthermore, 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 [2013] 1 HKC 526.

19.  In the premises and having considered the decision of the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in it, nor any failure on its part to apply high standards of fairness in its consideration and assessment of the Applicant’s claim.

20.  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