SUKHVINDER SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 397/2019

[2024] HKCFI 658

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 397 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 refused.

Observations for the Applicant:

1.  The Applicant is a 32-year-old national of India who last arrived in Hong Kong on 1 August 2014, and when he was refused entry by the Immigration Department, he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his former girlfriend’s father who objected to their relationship. He was subsequently being released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Bughipura, District Moga, Punjab, India. After leaving school he worked as a carpenter in his home village to make his living.

3.  In January 2013 while carrying out some carpentry work in the house of a wealthy family in his home village, he befriended with the owner’s daughter, and after finishing the work he started dating her in February 2013 but kept it a secret from her family due to the vast differences in their social standing and their caste.

4.  However, one day in November 2013 they were seen together by her father DS who became furious and together with his followers assaulted the Applicant with wooden sticks that he suffered cuts and bruises all over his body, and before they left DS warned the Applicant that he would be killed if he did not put an end to the relationship.

5.  After the assault the Applicant became fearful for his life and fled to District Ludhiana to take shelter in his aunt’s place, and after having ceased all contact with his former girlfriend the Applicant thought it would be safe to return to his home village in early March 2014.

6.  However, shortly after his return to his home village one day in late March 2014 while on his way home from work, the Applicant was grabbed by DS and his men and was taken to the local police where DS filed a false charge against him for causing disturbances to his daughter, and for which the Applicant was detained by the police in the station during which he was beaten by 2 policemen with wooden sticks, and was only released the next day after being warned to stay away from DS’s daughter.

7.  But as the threats from DS persisted, the Applicant was advised by his parents to leave the country to save his life, and so in June 2014 he departed India for China, and from there he later travelled to Hong Kong, but when he was refused entry by the Immigration Department he then raised a non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 3 September 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 27 November 2014 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 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 former girlfriend’s father DS upon his return to India as low due to low intensity and frequency of past ill-treatment from, that there is no evidence of any real intention of DS to seriously harm or kill him other than to deter him from seeing DS’s daughter and with whom the Applicant did cease having any contact since 2014 that there is no reason for DS to still have any adverse interest in him, that in any event it was a private personal dispute between the 2 of them without any official involvement that state 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 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 area away from his home district in large cities such as Delhi where it would be difficult if not impossible for anyone to locate him.

10.  By a Notice of Further decision dated 26 April 2017 the Director again rejected the Applicant’s claim after receiving and considering further information submitted by him relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”) and upon finding that he had failed to establish a personal and real risk of his BOR 2 right being violated upon his return to India.

11.  By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“The Board”) against the earlier decision of the Director, the notice of which was filed on 12 December 2014, and for which he attended 2 oral hearings on 16 November 2015 and 4 December 2018 (for his BOR 2 claim) before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 28 January 2019 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

12.  In its decision the Board accepted the Applicant’s claim of threats from his former girlfriend’s father DS over their previous relationship but found no evidence of any real intention of DS to seriously harm or kill him other than to deter him from seeing his daughter or any reason for DS to still have any further adverse interest in the Applicant given the fact that he has put an end to the relationship since 2014, and that in any event it was a private personal dispute between the 2 of them without 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 for him to move safely to other places away from his home village without any risk of being located that his claim for non-refoulement protection in Hong Kong failed on all the applicable grounds.

13.  On 12 February 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward various grounds for his intended challenge, of which he confirmed at the hearing as follows:

(1)  That he was not provided with legal representation for his appeal before the Board;

(2)  That he was not provided with language assistance for proper understanding of the Director’s decisions to enable him to have a better understanding of the reasons for rejecting his claim; and

(3)  That the Board merely adopted a formulaic approach in assessing his claim by relying on the same COI listed by the Director as to the overall condition in India including the ineffectiveness of their policy and the judicial procedures.

14.  For his complaint in Ground (1) of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v 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 right to 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 any difficulty. In the circumstances I do not find anything amiss arising from the lack of legal representation in his appeal process, nor do I find this ground reasonably arguable for his intended challenge.

16.  As for his complaint under Ground (2) of not being provided with language assistance for his appeal to the Board, it is clear that the Applicant was assisted by an interpreter in his appeal hearing before the Board during which he never raised any such issue, and in the absence of any relevant particulars or specifics or elaboration from him to demonstrate that the basis of his claim might have been wrongly interpreted or misunderstood by the Board, I find this complaint of the Applicant simply speculative and without basis.

17.  As regard his complaint under Ground (3) that the Board just relied on COI without proper understanding of the situation in India, again the Applicant failed to provide any relevant details or particulars in support of this complaint, and upon examination of those COI referred to by the Director and considered by the Board, I do not find any basis in this complaint of the Applicant either.

18.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an 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 risk of harm is primarily a matter for them 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.

19.  The fact is that it has been established by both the Director and the Board in their decisions 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, 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 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