HCAL 584/2018
[2019] HKCFI 425
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 584 of 2018
BETWEEN
Pannu Gurpreet Singh
Applicant
and
The Adjudicator of the
1st Putative Respondent
The Director of Immigration
2nd Putative Respondent
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge Bruno Chan :
Leave to apply for judicial review refused.
Observations for the Applicant:
1. The applicant is a 25-year-old national of India who arrived in Hong Kong on 5 July 2014 with permission to remain as a visitor up to 19 July 2014 when he did not depart and instead overstayed and was arrested by police on 9 February 2015. After he was referred to the Immigration Department for investigation, he lodged 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. He has since been released on recognizance pending the determination of his claim.
2. The applicant was born and raised in Village Rokhe, Po Ugar, The Ajnala, Amritsar, Punjab, India. After leaving school he worked as a farmer in his family’s farmland.
3. In April 2013 he was gifted a piece of land by his maternal grandfather which was however coveted by his maternal uncle who was also a farmer in the same village, and was politically influential as a supporter of the Indian National Congress Party (“INC”) and had relatives working for the police and the government.
4. As a result his uncle had frequently demanded that the applicant should transfer the land to him, and when the applicant refused, he would threaten to get the land by any means.
5. One day in July 2013 while the applicant was riding his motorbike on his way to Amritsar City, he was stopped by a vehicle on the road when his uncle and two men got out and started attacking him with punches and kicks, and before they left his uncle warned that if he still refused to transfer the land to him, next time he would be killed.
6. After the incident the applicant went to his grandfather for help but to no avail, he then took shelter at his friend’s place in Jalendhar without further incidents until one day in June 2014 when he was on his way to the market, he was ambushed by his uncle with two men who assaulted him with punches and kicks, and that before they left his uncle again warned that if he still failed to transfer his land to him, he would be killed.
7. Fearing that he would be attacked again, the applicant fled to Delhi to hide in another friend’s place, and although he encountered no further incidents in Delhi, his grandfather advised that it would not be safe in the long run for him to remain in India, the applicant therefore departed on 5 July 2014 for Hong Kong where he was subsequently arrested by police for overstaying and for possession of a false identity card for which he was convicted and sentenced to 12 months’ imprisonment.
8. Upon released from prison and pending deportation, he raised his non-refoulement claim for protection, but while being released on recognizance pending the determination of his claim, he was arrested by police again on 7 April 2017 for possession of a false identity card and for taking employment without permission, and was again convicted and sentenced to 15 months’ imprisonment, during which he completed a Non-refoulement Claim Form on 25 September 2017 and attended screening interview before the Immigration Department with legal representation form the Duty Lawyer Service.
9. By a Notice of Decision dated 31 October 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 (“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”).
10. In his decision the Director took into account all the relevant circumstances of the applicant’s claim and found no substantial grounds for believing that there will be any real risk of him being harmed or killed by his uncle upon his return to India would materialize, that the verbal threats and nature of attacks and the extent of his injuries did not attain the minimum level of severity under any of the applicable grounds, that it was a private family dispute between him and his uncle 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 young man with work experience to move to other part of India away from his home district in large cities such as Delhi, Mumbai or Pune where it would be difficult if not impossible for his uncle to locate him.
11. On 8 November 2017 the applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 19 March 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board. On 6 April 2018 his appeal was dismissed by the Board which also confirmed the Director’s decision.
12. In its decision the Board found on the basis of all the evidence of the applicant’s claim that his uncle had no real intention to carry out his threats of killing him, that the treatments received by him from his uncle before he left India did not fall within the meaning or severity of any of the applicable grounds, and that internal relocation elsewhere in India away from his home district is a viable option to the applicant to avoid any risk of harm from his uncle that his claim failed on all applicable grounds.
13. On 9 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 it he put forward the following grounds for his intended challenge:
(1) that the Director and the adjudicator reached their decisions wrongly in assessing his non-refoulement claim;
(2) that their decisions were not fair and reasonable as required by the Wednesbury test;
(3) that they failed to take into consideration that right to life must be protected from extra-judicial killings which he may face if deported to India; and
(4) that the adjudicator failed to give him sufficient time and opportunity to arrange for relevant evidence for his non-refoulement claim and his appeal.
14. These are however just broad and vague assertions of the applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the adjudicator had erred in their decision, or in what way were their decisions unfair or unreasonable, or what relevancy was extra-judicial killings to his case, or how did the adjudicator fail to give him sufficient time or opportunity to produce evidence in support of his claim. None of these assertions were elaborated or presented with any particulars or specifics by the applicant who at the hearing of his application now before me did not make any further submission or adduce any further evidence which he claimed not to have been given time or opportunity to do by the adjudicator. In the premises I do not find any basis or merits in any of these complaints of his.
15. As has been repeatedly emphasized by the Court of Appeal, 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 Re Litoun Mounsy [2018] HKCA 537 .
16. In the applicant’s case, the fact 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.
17. 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.
18. 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.
Dated the 31st day of May 2019.
(NG Ka-wing)
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
Notes for the Applicant :
If leave has been granted, the Applicant or his solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
Sent to the Applicant on 31 May 2019
Pannu Gurpreet Singh
Applicant’s ref. no.:
Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 31 May 2019
The Adjudicator of the Non-refoulement Claims Petition Office st Putative Respondent’s ref. no.:
The Director of Immigration nd Putative Respondent’s ref. no.:
Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)
Form CALL-1