SANDHU AMANDEEP SINGH v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 647/2018

[2020] HKCFI 2372

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 647 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

1.  the Application for Leave to Apply for Judicial Review be reinstated; and

2.  leave to apply for Judicial Review be refused.

Observations for the Applicant:

1.  The Applicant is a 39-year-old national of India who arrived in Hong Kong on 11 June 2014 with permission to remain as a visitor up to 25 June 2014 when he did not depart and instead overstayed and was arrested by police on 9 September 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 paternal uncle over a land dispute in his home village.  He was subsequently released on recognizance pending the determination of his claim.

2.   The Applicant was born and raised in Village Ajitwal, Punjab, India where he had inherited some land from his father after his passing, but as he was then still in school, his mother then let out his land to his paternal uncle for some rental income.  After leaving school he first worked as a driver in his home village before going to work in the Philippines in 2011.

3.  In 2014 he returned to his home village to ask his uncle to return the land to him so that he could let it out to other villagers for higher rental income, but his uncle refused and even on one occasion attacked him with bamboo stick, and threatened him that he should leave India or else he would be killed.

4.  Fearing further attacks from his uncle, the Applicant therefore fled to hide in his friend’s place in Village Bhohona in Moga, and later on 10 June 2014 he departed India for Hong Kong where he overstayed, and upon his arrest by the police he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 28 June 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.  By a Notice of Decision dated 21 July 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 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”).

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 uncle upon his return to India as low due to the low intensity and frequency of past ill-treatment from him, that it was a private family dispute over land 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 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 part of India away from his home district in large cities such as Delhi where it would be difficult if not impossible for his uncle to locate him.

7.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, for which the Board did not hold any oral hearing for his appeal, and in his absence proceeded to deal with the matter on paper.  On 20 March 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board did not take issue with the credibility of the Applicant’s claim and accepted the material facts of his case and of his claimed fear of harms and threats arose from a land dispute with his uncle and hence did not necessary to conduct any oral hearing, but found no evidence of any official involvement in their dispute that proper legal proceedings should be used to resolve it, and that in any event with state/police protection available to the Applicant upon his return to India as well as reasonable internal relocation for him to move safely to other areas away from his home district without any risk of being located by his uncle that his claim for non-refoulement protection failed on all applicable grounds.    

9.  On 16 April 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 repeated his claim of being ill-treated and threatened by his uncle over their land dispute, and put forward a single ground or complaint that it was procedurally unfair and unreasonable for the Board to reject his case without holding any oral hearing for his appeal to enable him to explain his case and the situation in his home country.

10.  On 10 July 2018 the Applicant appeared before Deputy High Court Judge Josiah Lam and repeated his complaint that he was not given any oral hearing before the Board to explain his case or the situation in his home country, but he conceded that he was able to do so earlier before the Director, and when he was asked to make further submissions on his complaint, he replied that he had nothing further to say.  The learned judge then reserved his decision.

11.  However, before the learned judge handed down his decision, the Applicant on 19 September 2018 filed a Notice of Discontinuance of his application, which was noted by the learned judge, and as I understand, no further action had been taken by the court including any decision regarding the Applicant’s leave application for judicial review.

12.  One year and eight months later on 19 May 2020, the Applicant issued a summons to apply to “dismiss” his earlier Notice of Discontinuance and for the court to resume hearing his leave application, and at the hearing of his summons before me, he explained that when he filed his Notice of Discontinuance, he thought his problem back home had been resolved, but as he had since been informed by his family that the problem has still persisted, he therefore wants to continue with his application for leave to apply for judicial review of the Board’s decision.

13.  Given the fact that no decision by the court had been made regarding the merits of his leave application, I decided to allow the Applicant to proceed and invited him to make submissions regarding his grounds for his application, to which he confirmed that he relies on the single ground as before and as stated in his earlier affirmation that it was procedurally unfair and unreasonable for the Board not to conduct any oral hearing for his appeal so that he could explain his case and the situation in his home country, but when he was invited to do so before me, he merely stated he would just rely on what has already been stated in his affirmation and that he has nothing further to say.     

14.  It is true that the Board did not hold any oral hearing for the Applicant’s appeal, but as held by the Court of Appeal in ST v Betty Kwan [2014] 4 HKLRD 277, there is no absolute right to an oral hearing as the question must depend on the standard of fairness required, the nature of the decision-making process in question, the procedural history of the matter including whether there has been an oral hearing before, the interest at stake and the importance of the decision, the issues involved and how the presence or absence of an oral hearing would affect the quality of the opportunity to make worthwhile or effective representations.

15.  As noted above, the Board did explain in [4] of its decision that it accepted that the Applicant had already set out his case clearly in the materials provided to the Director and for which he had attended screening interview before an immigration officer during which he had had an opportunity to explain himself on all matters, and that on the facts of the Applicant’s case it did not take issue with the credibility of his claim.  Accordingly, it was entitled to find, and correctly in my view, that it was not necessary in the circumstances to hold any oral hearing for the Applicant’s appeal, and despite being given an opportunity to do so not just before Deputy Judge Lam but also before me, the Applicant did not make any further representation or submit any additional materials regarding his claim or situation about his home country which he would have made to the Board if he were given an oral hearing before the Board.

16.  In the premises the Applicant has failed to demonstrate that an oral hearing before the Board would provide any real benefit for his case, or any suggestion that he has suffered any real prejudice from the lack of oral hearing before the Board.  As such and in the circumstances I do not find this ground or complaint of the Applicant reasonably arguable for his intended challenge.     

17.  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.

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

19.  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.

20.  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