HARDEV SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 2482/2020

[2024] HKCFI 238

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2482 OF 2020

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 refused.

Observations for the Applicant:

1.  The Applicant is a 41-year-old national of India who last arrived in Hong Kong on 27 May 2013 as a visitor with permission to remain as such up to 10 June 2013 when he did not depart and instead overstayed, and was arrested by police on 26 August 2013.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to he would be harmed or killed by the Indian police or authorities for harbouring terrorists in his home and/or by the terrorists for disclosing their information to the police.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in District Kathua, Jammu & Kashmir, India.  After leaving school he ran his own transportation business, and continued to reside with his widowed mother and his younger brother in his home district.

3.  One day in September 2012 some unknown armed men whom the Applicant suspected to be terrorists came to his house to ask for food and a place to rest, of which the Applicant and his mother were too afraid to refuse, and after a few hours of rest those men just left but with a warning to the Applicant and his family not to tell anyone about them.

4.  On the following day the police came to accuse the Applicant and his brother for harbouring the terrorists and brought them back to the local police station for interrogations, during which they were punched and kicked and beaten by several policemen and officers with batons but they insisted to have nothing to do with the terrorists, and after 2 days of detention they were released without charge after their uncle had paid bribes to the police.

5.  Thereafter the police would continue to closely monitor the Applicant and his family and would come to their home almost daily to check on them, and to avoid such harassments the Applicant and his family in October 2012 moved away to stay in his uncle’s place in Chandigarh where they remained without any further incidents.

6.  However, the Applicant still feared of being harassed or persecuted by the police or killed by the terrorists for suspecting that he might have provided information about them to the police, and so on 31 January 2013 he departed India for Hong Kong where he stayed as a visitor for 2 months before returning to India.  

7.  While staying in his uncle’s place in Chandigarh, the Applicant made arrangements to leave the country again, and on 27 May 2013 he departed India for Hong Kong again where he was permitted to stay as a visitor until 10 June 2013 when he did not depart and instead overstayed, and upon his subsequent arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non- refoulement Claim Form (“NCF”) on 10 September 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 4 December 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 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 him being harmed or killed by the Indian police or the terrorists upon his return to India as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any further adverse interest of the Indian police or authorities in the Applicant after releasing him and his brother in September 2012 without charge and the facts that nothing has since ever happened to his brother who has all along remained in India and that the Applicant was able to leave and return to India in early 2013 and then left again in May 2013 without any problem, while his claimed fear of the terrorists is wholly without any evidential basis and purely his own speculations and for the same fact that nothing has since ever happened to his brother who has remained in India without any further encounter with any terrorists or any further incidents from anyone, that in any event state and police protection would be available to the Applicant from any threats from any terrorists 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 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 Chandigarh where he had stayed before without incidents or Delhi where it would be difficult if not impossible for anyone to locate him.

10.  On 18 December 2015 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 5 May 2016 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 3 February 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision.

11.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s claim that it doubted his claim of fear of harm from the Indian police or terrorists that caused him to leave his country to come to Hong Kong to seek protection, that there is no evidence of any further adverse interest of the Indian police or authorities in him since his release without charge in 2012 and that nothing has happened to his brother who has remained in India all these years while the Applicant himself was able to leave and enter the country without any problem, and that there is absolutely no basis for him to have any fear of harm from any terrorists in the absence of any such attempts against him before he left the country or his brother who has all along remained in India without any incidents, and that in any event any risk from any terrorists would be negated by state or police protection available to the Applicant upon his return to India as well as reasonable internal relocation for him to move safely to other part of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all the applicable grounds.

12.  Meanwhile on 24 March 2017 the Director on his own initiative 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 the 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 27 April 2017 also rejected the Applicant’s BOR 2 Claim upon finding that he had failed to establish any personal and real risk of his absolute and non-derogable rights under the HKBOR including BOR 2 being violated upon his return to India.

13.  On 15 August 2017 the Applicant again lodged an appeal to the Board against this Further Decision of the Director, and for which he attended another oral hearing on 23 April 2020 before the same Adjudicator for the Board during which he repeated the same account of events as in his earlier appeal that caused him to flee his home country to come to Hong Kong for non-refoulement protection, and on 28 October 2020 his appeal was again dismissed by the Board which also confirmed the Further Decision of the Director upon finding that there is not a real risk of the Applicant being arbitrarily deprived of life or of his right to life under BOR 2 upon his return to India. 

14.  On 22 December 2020 the Applicant filed his Form 86 for leave to apply for judicial review of this second decision of the Board, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  Procedural impropriety in failing to properly apply para 2 of the UN Committee Against Torture General Comment No. 2 whereby satisfaction of a national state’s obligations to conduct sufficient due diligence requires that reforms and means of relief introduced must be effective in any event but that the Board only focused on whether such reliefs showed merely signs of positive improvement;

(2)  Procedural impropriety in failing to conduct sufficient inquiry into the relevant COI conditions or that the Applicant would face serious risk from his enemies who will harm him because of his political and statistical view which is considered a serious matter for which he would definitely face harm upon refoulement;

(3)  Procedural impropriety or irrationality in failing to provide reasons for assessment of BOR 2 risk and/or sufficient basis to support the conclusion of lack of BOR 2 risk;

(4)  Error/misdirection in law in failing to take into account the considerations of psychological strain and threats to the Applicant personally or threats to him directly to kill him;

(5)  Procedural impropriety in failing to consider the Applicant’s fear that his enemies still fear for him that he could not return to his home country in such circumstances as there is genuine risk awaiting him that he could not relocate to other places as his enemies can trace him wherever he may hide in his home country; and

(6)  That there is no sufficient basis to conclude that the applicant and his family would not be at risk of being subjected to torture and/or CIDTP upon refoulement.

15.  These are however all just vague and bare assertions of the Applicant containing a few key words or phrases but without any relevant or necessary particulars or specifics or elaboration as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or how did the Board fail to make proper inquiry into COI of the Applicant’s home country or the risk to which he claimed to fear in his home country, or what procedural impropriety or error or misdirection in law did the Board commit in its determination of the Applicant’s claim under the BOR 2 ground or any other applicable grounds in the absence of any proper or relevant details or information or elaboration from the Applicant either in his Form or affirmation or at the hearing of his application. As such, I do not find any of his proposed grounds reasonably arguable, and in the he 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, nor do I find any reasonably arguable basis for his intended challenge either.

16.  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.

17.  In the Applicant’s case, the Board rejected his claim on all the applicable grounds essentially on its adverse finding as to his credibility for the thorough and detailed analysis and reasoning set out in both of its decisions and with the benefit of hearing him not once but twice in his oral evidence and his answers to questions raised of his claims during his 2 appeal hearings, and in the absence of any error of law or judicial unfairness

18.  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 findings of the Board in either of its decisions.  

19.  Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decision that the risk of harm from the terrorists in the Applicant’s 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. 

20.  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.

21.  For the reasons given I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review of either decisions of the Board, I therefore refuse to grant leave and accordingly dismiss 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