DHALIWAL BALJIT SINGH v. TORTURE CLAIMS APPEAL BOARD /NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 1086/2018

[2019] HKCFI 2456

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1086 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 32-year-old national of India who entered Hong Kong illegally in early December 2015 and was arrested by police on 8 December 2015.  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 brother over a property dispute.  He was subsequently released on recognizance pending the determination of his claim. 

2.  The Applicant was born and raised in Chugha Kalan, Punjab, India.  After leaving school he worked as a mason and lived with his parents and four brothers in his father’s house in their village.

3.  After his father passed away, he and his brothers decided to sell the family house and used the proceeds to purchase a large piece of land in the village on which they built their own house for their families, but as the Applicant was then single, he therefore stayed in his mother’s house.

4.  In August 2015 the Applicant planned to get married and demanded for his own share of the land so that he could build his house there, but his request was refused by his brothers in particular Gurtej who insisted that he should remain in their mother’s house,which led to angry confrontations between them during which Gurtej would threaten to kill the Applicant should he insist in his demand.

5.  One day in September 2015 the Applicant again had a heated quarrel with Gurtej who then turned violent and started to punch and kick him, while the other brothers soon joined and demanded the Applicant to give up his share of the land, and when he refused,they locked him up in a room without food or water until his elder sister intervened when he was released.

6.  The Applicant then reported the matter to the police, but when they refused to take any action without bribe money being paid, the Applicant felt it was no longer safe to remain in India, and therefore departed in December 2015 for China, and from there he sneaked into Hong Kong, and 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 25 August 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.  By a Notice of Decision dated 28 September 2017 the Director of Immigration (“the 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 and 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”).

8.  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 Gurtej upon his return to India as low due to the absence or low intensity and frequency of past ill-treatment from him,that there was no evidence of any real intention on the part of Gurtej to seriously harm or kill him, that it was in any event a private family dispute over property between them without any official involvement that state/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 work experience to move to other area of India away from his home district in large cities such as Delhi or Mumbai where it would be difficult if not impossible for Gurtej to locate him.

9.  On 11 October 2017 the Applicant filed an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 22 March 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 29 May 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.  In its decision the Board accepted the Applicant’s accounts of his disputes with Gurtej over his share of the land in their home village, but found that his claim based on such facts did not fall within any of the applicable risks, and that in any event with the availability of state or police protection as well as reasonable internal relocation within India that the Applicant can safely move to other areas away from his home district without any risk of being located by Gurtej or his other brothers that his claim failed on all applicable grounds.

11.  On 13 June 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

 (1) lack of legal representation in his appeal before the Board;

 (2) lack of language assistance for not providing him with any translation of the documents in the hearing bundle for his appeal before the Board;

 (3) wrongful exercise of case management by the Board in its failure to properly consider the relevant COI in assessing whether state protection is available in India;and

 (4) that his claim had been determined unfairly by both the Director and the Board.   

12.  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 standards 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.

13.  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.

14.  As for his complaint under Ground (2) of not being provided with a translation of the documents in his hearing bundle to assist him in his appeal before the Board, it is clear that he would be well familiar with most of the documents such as his NCF and screening records based on his own knowledge and information, and that he was assisted by an interpreter at his appeal hearing before the Board during which he never raised any issue over translation of the documents.  In the absence of any particulars or specifics to demonstrate that the basis of his claim has indeed been wrongly interpreted or wrongly understood by the Board, I find this complaint of the Applicant simply speculative and without basis.

15.  Regarding his Ground (3) over the Board’s use of COI, it is just a broad and vague assertion of the Applicant without any particulars or elaboration as to how the Board erred in its reliance of the COI in its assessment of state protection in India, and an examination of the thorough and detailed analysis of this issue by the Director in [14] – [15] of his decision which had also been considered by the Board in [45] of its decision reveal that there is simply no basis or merit in this complaint of the Applicant.

16.  The same can be said about his complaint under Ground (4) which is another broad and vague assertion of the applicant without any particulars or specifics or elaboration. As has been repeatedly emphasized by the Court of Appeal, evaluation of risk 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.

17.  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 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.

18.  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.

19.  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