NIRMALTEJ SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 2885/2019

[2024] HKCFI 2508

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2885 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 / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 43-year-old national of India who arrived in Hong Kong on 12 September 2013 and raised a torture claim later taken as a non-refoulement claim for protection to the Immigration Department on the basis that if he returned to India he would be harmed or killed by his girlfriend’s family who disapproved of their relationship due to their caste difference. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised as a Sikh in Deep Nagar, Patiala District, Punjab, India. After leaving school he worked as a plumber in his home district, and in 2011 started dating his girlfriend in the same village but from a lower caste.

3.  In 2012 they decided to get married, but when his girlfriend informed her family, her parents disapproved of their proposed marriage due to their different caste, and warned her to stop seeing the Applicant.

4.  Despite the warning they continued to meet up from time to time, but during one such occasion they were confronted by her brother who together with several men threatened the Applicant and proceeded to beat him with punches and kicks that the Applicant suffered cuts and bruises all over his body that he later had to seek medical treatments in a local hospital.

5.  Thereafter the Applicant became fearful of further attacks and stayed away from his girlfriend, but in May 2013 they decided to elope by taking a train to Himachal Pradesh District, but while he was waiting for her at the train station, the Applicant saw her parents and brother together with some unknown men carrying wooden sticks approaching the station, he therefore fled from the scene and went to New Delhi to take shelter in a friend’s place.

6.  However later when he heard that his girlfriend’s family were looking for him everywhere, the Applicant decided that it was no longer safe to remain in the country, and therefore departed India on 11 September 2013 for China, and from there he travelled to Hong Kong and raised his non-refoulement claim for protection, for which he completed a Supplementary Claim Form (“SCF”) on 24 May 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  By a Notice of Decision dated 25 June 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”).

8.  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 girlfriend’s family upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill him other than to deter him from seeing his girlfriend, that in any event it was a private relationship dispute between them 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 1.3 billion people spread across a vast territory of more than 3 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 Delhi or Mumbai where it would be difficult if not impossible for anyone to locate him.

9.  On 4 July 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 7 August 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 26 September 2019, his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from the family of his girlfriend that caused him to leave his country to come to Hong Kong to seek protection, and that there was no reliable evidence of any inter-caste relationship that he claimed to have in India or that he had been threatened harmed or targeted for harm in connection with any such relationship that it is not accepted that he faces a real chance of harm of any type in India in the reasonably foreseeable future for any of the reasons he had claimed that the Board concluded that the Applicant’s claim for non-refoulement protection failed on all applicable grounds.

11.  On 2 October 2019 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 his supporting affirmation of the same date in which he just repeated his claim as before and asserted of not being satisfied with the decision but without putting forth any proper ground for his intended challenge. 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.

12.  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.

13.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 18 – 54 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law 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 to challenge the finding of the Board.

14.  Furthermore, the fact is that it has also been correctly established by the Director in his decision that the risk of harm 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, a decision also agreed and confirmed by the Board, 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.  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.  Moreover, the Applicant recently on 27 August 2024 filed an affirmation requesting to withdraw his application as all his problems in his home country have been resolved that he now wants to return to India.

17.  In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation of no more problem for him to return to his home country, I 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