LOVEPREET SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 614/2020

[2024] HKCFI 2639

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 614 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 / 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 36-year-old national of India who arrived in Hong Kong on 20 January 2012 as a visitor with permission to remain as such up to 3 February 2012 when he did not depart and instead overstayed, and was arrested by police on 22 November 2022 for using a false instrument and for which he was subsequently convicted and sentenced to prison for 8 months. After he was discharged from prison and was referred to the Immigration Department for deportation, he raised a non-refoulement claim for protection on the basis that if he returned to India he would be harmed or killed by some fellow villagers over their personal disputes. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Manakpura, Teh Patti, Tarn Taran, India. After leaving school he worked in the farming and diary business in his home district, and dated his girlfriend from the same village.

3.  However, her father Gurmail Singh (“GS”) was not pleased with their relationship and did not want the Applicant to be with his daughter, and on one occasion in 2009 he sent some men to beat the Applicant and to warn him to stay away from his daughter, and when the Applicant’s subsequent complaint to the village head was to no avail as the village head happened to be his girlfriend’s uncle Sukhwinder Singh (“SS”) and was on the side of GS and also put pressure on the Applicant to end his relationship with his girlfriend, which the Applicant eventually did in 2010.

4.  Thereafter on one occasion in November 2011 the Applicant was travelling with some friends on a tractor in the village which accidentally struck and killed a boy who happened to be one of the SS’s sons, and when the Singh brothers blamed the Applicant for the accident due to their past dispute over his former girlfriend and threatened to take revenge against him for the death of the boy, the Applicant became fearful for his life and fled to another town to take shelter in an aunt’s place.

5.  On 20 January 2012 the Applicant departed India for Hong Kong where he subsequently overstayed, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 1 September 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 24 October 2017 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”).

7.  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 the Singh brothers from his home village upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that in any event these were private 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 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 Delhi or Mumbai where it would be difficult if not impossible for the Singh brothers to locate him.

8.  On 7 November 2017 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 2 December 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 11 March 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  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 Singh brothers that caused him to leave his country to come to Hong Kong to seek protection, that even if his such claim were true that these were private disputes between them 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 alternatives for him to move safely to other parts 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.

10.  On 14 April 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1)  That the Board was in breach of procedural fairness in unlawfully fettering its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirements;

(2)  That the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(3)  That the Board’s decisions to refuse the Applicant’s appeal were unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(4)  That the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5)  That the Board had significantly relied on source of news not officially recognized or were simply hearsay or outdated that the lack of credible source of information had resulted in groundless speculation that it would be safe for the Applicant to return to his home country;

(6)  That the Adjudicator rejected the Applicant’s claim without any proper inquiry or careful understanding of his situation;

(7)  That it was procedurally unfair for the hearing bundle to be provided to the Applicant just a few days before his appeal hearing before the Board that the Applicant was confused during the hearing that caused the Board to find his credibility questionable.

11.  These are however all just bare and vague assertions of the Applicant containing a few key words or phrases but without any necessary or relevant particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI or what source of news relied on by the Board were not officially recognized or were hearsay or outdated, or in what way was the Applicant confused during his appealing hearing before the Board that was allegedly caused by the late provision of the hearing bundle to him for his appeal. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable 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 fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in his 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, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

14.  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.

15.  Moreover, the Applicant recently on 15 August 2024 in writing requested to withdraw his application as he wanted to return to India, and which he subsequently did as confirmed by the Director.

16.  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 given that he has subsequently returned 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