SINGH LAVPREET v. TORTURE CLAIMS APPEAL BOARD

HCAL 1379/2020

[2023] HKCFI 2260

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1379 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 27-year-old national of India who entered Hong Kong illegally on 7 December 2015 and surrendered to the Immigration Department on the following day when he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his neighbour in his home village due to a land dispute between the neighbour and the Applicant’s father. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Bari, Kichha, Udham Singh Nagar, Uttarakhand, India.  After leaving school he farmed on his father’s land in his home village.

3.  In about 2008 his neighbour Jagtar who was a wealthy land owner with influential political connections started to press the Applicant’s father to sell his land to him, but his father always refused as he had intended to pass the land on to the Applicant.

4.  In 2009 Jagtar began to lose his patience with the Applicant’s father and started to make threats against him but to no avail, and one day in 2010 while the Applicant’s father was on his way home after attending a clinic for his chronic illness, he was knocked down by a tractor driven by Jagtar who threatened that if the Applicant’s father still refused to sell the land to him, next time he would be killed.

5.  After his father was taken to the hospital for medical treatment, the Applicant reported the matter to the police who however just treated it as a traffic accident without taking any action against Jagtar.

6.  Several months later one day in 2015 while the Applicant was working on his father’s farmland, Jagtar came with his men and beat him up badly that he suffered a fractured hand and a broken jaw, and before he left, Jagtar warned that next time he would be killed if his father still refused to sell the land to him.        

7.  After the assault the Applicant became fearful for his life, and so he fled to Delhi, and on 6 June 2015 he departed India for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 28 March 2018 and attended screening interview before the Immigration Department with legal representation.             

8.  By a Notice of Decision dated 26 April 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the 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 Ordinance, Cap 383 (“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 of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real and substantial risk of him being harmed or killed by Jagtar upon his return to India due to the low intensity and frequency of past ill-treatment from him, that there was no evidence of any real intention of Jagtar to seriously harm or kill him other than to put pressure on his father for the sale of his land, that in any event it was a private land dispute between Jagtar and the Applicant’s father 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 adult with working experience to move to other areas of the country away from his home district in large cities such as New Delhi or Mumbai where it would be difficult if not impossible for Jagtar to locate him.

10.  On 7 May 2018 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 16 January 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 14 May 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision.

11.  In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence that it doubted his claim of fear of harm from his neighbour Jagtar that caused him to flee his country to come to Hong Kong to seek protection, and that in any event it was a private land dispute between Jagtar and the Applicant’s father 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 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 applicable grounds.    

12.  On 3 July 2020 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 or in his supporting affirmation of the same date to which he just attached a copy of the decision but without putting forth any proper ground for his intended challenge, nor was he able to do so at the hearing of his application. As such and in the 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, I do not find any reasonably arguable basis for his intended challenge.

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.  In the Applicant’s case, the fact is that it has been correctly established by both the Director and the Board in their respective decision that the risk of harm in his 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.                

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 accordingly I 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