GURSHARN SINGH v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 330/2019

[2022] HKCFI 1069

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 330 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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 40-year-old national of India who arrived in Hong Kong on 1 November 2007 as a visitor with permission to remain up to 15 November 2007 when he did not depart and instead overstayed, and was arrested by police on 16 December 2007. After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his uncle over a land dispute in his home village and/or by his in-laws over the dowry dispute arising from his marriage with his wife and/or by his brother-in-law over his affair with the Applicant’s wife. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Tarn Taran, Punjab, India. After leaving school he ran a transportation business, got married and raised a family with 2 children.

3.  In 2007 his paternal uncle started to raise issue with a piece of farmland which the Applicant had inherited from his father and which was coveted by his uncle, and in the pursuant arguments between them, his uncle and sons made death threats against the Applicant, and during one occasion he was also beaten by them but of which the local police did not do anything as they regarded the matter as their private family dispute.  

4.  As he became fearful for his life, the Applicant on 30 October 2007 departed India for Hong Kong where he subsequently overstayed, and after his arrest by the police, he then raised his torture claim with the Immigration Department, and while being released on recognizance pending the determination of his claim, the Applicant learnt from his mother that after he left the country, his in-laws had raised a dowry dispute arising from his marriage with his wife and had threatened to kill the Applicant upon his return to India, while his brother-in-law Sakatar had started an affair with his wife in his absence, and had called the Applicant on the phone demanding that he divorced his wife so that they could be together, but when the Applicant refused, Sakatar threatened to kill him when he returned to India, all of which had caused the Applicant to become fearful of being harmed or killed if refouled to his home country, and which he had included as the bases for his claim for non-refoulement protection, and for which he completed a Torture Claim Form (“TCF”) on 15 January 2014 and a Supplementary Claim Form (“SCF”) on 3 November 2014, and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

5.  By a Notice of Decision dated 31 December 2014 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 the Hong Kong Bill of Rights Ordinace, 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”).

6.  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 perceived enemies upon his return to India as low due to the absence of or low intensity and frequency of past ill-treatment from them, that in any event all such threats arose from private or family disputes 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 1.2 billion people spread across a vast territory of more than 2.9 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 part of India away from his home district in large cities such as Delhi where it would be difficult if not impossible for him to be located.

7.  On 9 January 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 23 November 2015 before the Board during which he elected not to give any further evidence or to answer questions raised of his claim by the Adjudicator for the Board. On 29 November 2016 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision the Board found inconsistencies and discrepancies in the Applicant’s claim previously given to the Director and available in the hearing bundle before the Board which the Applicant had failed to explain or clarify which he elected not to give any oral evidence or to answer questions raised by the Adjudicator for the Board, which credibility was further undermined by his failure to raise his claim upon his arrival in Hong Kong until one month later after his arrest by the police, and that in any event his problems with his uncle or in-laws or Sakatar were all private or family disputes without any official involvement that state/police protection would be available to him upon his return to India as well as reasonable internal relocation for him to move safely to other area away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.    

9.  Meanwhile on 11 January 2017 the Director on his own initiative invited the Applicant to submit any additional facts which may be 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 in the absence of any response from him, the Director by a Notice of Further Decision dated 14 February 2017 also rejected the Applicant’s BOR 2 Claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR including right to life under BOR 2 being violated upon his return to India.

10.  On 24 February 2017 the Applicant again lodged an appeal to the Board against this Further Decision of the Director, and for which the Board did not find it necessary to hold a further oral hearing and instead proceeded to deal with it in his absence and on paper, and on 24 January 2019 the Board also dismissed his appeal and confirmed the Further Decision of the Director upon finding that the Applicant had failed to establish his BOR 2 Claim in the absence of any additional facts or materials from him in support of such claim.

11.  On 4 February 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the further decision of the Director of 14 February 2017, but as it had been superseded by his subsequent appeal to the Board and is therefore no longer susceptible to judicial review: see Re Moshsin Ali [2018] HKCA 549, I shall treat this application as his intended challenge of the second decision of the Board on his BOR 2 Claim, but no ground for seeking relief was given by the Applicant in his Form, and in his supporting affirmation of the same date he merely repeated his claim as before that he cannot return to his home country as his life would still be in danger there but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for 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 either decisions, 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, as correctly found by both the Director and the Board in their further decisions, in the absence of any additional facts or information from him in support of his BOR 2 Claim, even on the facts and basis of his own case that his claim just did not engage the BOR 2 ground, and hence there is simply no basis at all for his intended challenge.

14.  Furthermore, the fact is that it has been established by both the Director and the Board in their earlier decisions that the risk of harm in the Applicant’s claim based on his own case 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 under any of the applicable grounds: 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 under any of the applicable grounds.

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 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