SANDEEP SINGH v. TORTURE CLAIMS APPEAL BOARD

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 be refused.

Observations for the Applicant:

1.  The Applicant is a 40-year-old national of India who arrived in Hong Kong on 1 January 2015 claiming to be a visitor for the purpose of sightseeing, and when he was refused entry by the Immigration Department, he then raised a non-refoulement claim for protection 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.  

2.  The Applicant was born and raised in Village Rehpa, District Nawashahal, Punjab, India. After leaving school he worked as a farmer in his home district to make his living, and dated a girl by the name of Jaspreet from a wealthy family of upper caste in the same village.

3.  In 2008, he went to Dubai to work as a carpenter, during which he maintained his relationship with Jaspreet, and in 2013 when he returned to India, he proposed to marry her to which she agreed, but his marriage proposal was rejected by her family who regarded his lower caste status not worthy for Jaspreet and her family, and demanded that he immediately ended the relationship.

4.  Shortly thereafter one day in July 2013 while he was on his way home, the Applicant was confronted by Jaspreet’s brother and other men who accused him of continuing seeing Jaspreet and ignoring their demand that they proceeded to beat him, and before they left they threatened that next time they would chop him to death if he still failed to heed their demand to end his relationship with Jaspreet.

5.  Yet the Applicant continued to see Jaspreet, and one day in October 2014 he was again confronted by Jaspreet’s brother and his followers who proceeded to beat him violently with hockey sticks that he lost consciousness and was subsequently taken by other villagers to a local clinic for medical treatments.

6.  As a result of the continuing threats from Jaspreet’s family, the Applicant was advised by his family to save his life by leaving his home village, and so the Applicant fled to Ludhiana and then Delhi where he took shelter in a friend’s place, and on 1 January 2015 he departed India for Hong Kong, and when he was refused entry by the Immigration Department he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 24 February 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

7.  By a Notice of Decision dated 24 April 2015, 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 Ordinance, 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”).

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 the family of his girlfriend Jaspreet 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 Jaspreet’s family to seriously harm or kill him other than to stop him from seeing her, that in any event it was a private and personal dispute between him and Jaspreet’s family only 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 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 Jaspreet’s family to locate him.

9.  On 4 May 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 27 June 2016 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 28 February 2017, his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision[1], the Board found no reliable evidence of any real intention of the family of his girlfriend Jaspreet to seriously harm or kill him other than to stop him from seeing her, and that in any event it was a private dispute between him and Jaspreet’s family only 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 by Jaspreet’s family his claim for non-refoulement protection failed on all applicable grounds.

11.  Meanwhile on 22 March 2017, the Director on his own initiative invited the Applicant to submit any additional facts which he may consider relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute and non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 “), and upon receiving his further submissions based on his claim as before, the Director by a Notice of Further Decision dated 2 May 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 HKBOR including right to life under BOR 2 risk being violated upon his return to India, and that in any event his claim simply did not engage the BOR 2 ground on its limited scope.

12.  On 10 May 2017, the Applicant again lodged an appeal to the Board against this Further Decision of the Director, and for which he attended another oral hearing on 30 June 2020 before the Board when he essentially repeated his claim as before and answered further questions raised of his BOR 2 Claim by the same Adjudicator for the Board, and by a Decision[2] dated 24 September 2020 the Board also dismissed his appeal and rejected his BOR 2 Claim upon finding that he had failed to make out a case under BOR 2 risk.            

13.  On 28 September 2020, the Applicant filed his Form 86 for leave to apply for judicial review of this second decision of the Board, but no ground for seeking relief was given in his Form or his supporting affirmation of the same date to which he just attached a copy of the decision but without putting forth any proper ground for his intended challenge, nor was he able to do so at the hearing of 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 decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge of this second decision of the Board, or for that matter the first decision of the Board even if one were to ignore the fact that the Applicant would have been seriously out of time with his application if he were to challenge that decision as well.

14.  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.

15.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective earlier 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.                

16.  In the premises, and having considered both decisions of 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 all the applicable grounds.

17.  For all these reasons, I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his 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