BRAR MANDEEP SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 149/2023

[2023] HKCFI 1065

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 149 of 2023

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;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 38-year-old national of India who arrived in Hong Kong on 26 February 2014 as a visitor with permission to remain as such up to 4 March 2014 when he did not depart and instead overstayed, and one month later on 3 April 2014 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his creditor and associates over his unpaid debts. He was subsequently released on recognizance pending the determination of his claim.

1^st Non-refoulement Claim

2.  The Applicant was born and raised as a Sikh in Village Mahla Khurd, Patti Thoba, Bagha Purana, Moga, Punjab, India. After leaving school he together with his paternal uncle ran a dairy farm business in their home village by means of a loan borrowed from a local money-lender to be repaid within 3 years and with interest payable every month.

3.  However their business subsequently failed and was closed down in 2012, and when the Applicant and his uncle were unable to repay their loan, their creditor started to send men to threaten and beat them, and one day in February 2013 when the Applicant was told by his friends that his uncle had been poisoned by men sent by their creditor and later died in the hospital, and that the Applicant was accused by his uncle’s family of being involved in the killing of his uncle that the police were looking for him, the Applicant therefore fled to Rajasthan to hide in a friend’s place, and on 26 February 2014 he departed India for Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

4.  By a Notice of Decision dated 25 October 2016 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”).

5.  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 creditor and associates upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that in any event it was a private monetary dispute 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 the country away from his home district in large cities such as Delhi where it would be difficult if not impossible for his creditor to locate him.

6.  On 2 November 2016 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 26 June 2017 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board, and on 31 July 2017 his appeal was dismissed by the Board upon finding numerous inconsistencies in his evidence that he was considered not a witness of truth and rejected the credibility of his claim, and that the Board also confirmed the Director’s decision.

7.  The Applicant’s application for leave to apply for judicial review of the Board’s decision was also refused by Deputy High Court Judge Woodcock on 18 July 2018 upon finding none of his proposed grounds for his intended challenge reasonably arguable, that there was no error of law or procedural unfairness in his process before the Board or in its decision, and that there was no prospect of success in his intended application (HCAL 481/2017 [2018] HKCFI 1581).

8.  The Applicant’s subsequent appeals to the Court of Appeal (CACV 340/2018) and the Court of Final Appeal had all been rejected, ended by a decision of the latter dated 23 June 2020.

Subsequent Non-Refoulement Claim

9.  Less than 2 months later on 14 August 2020 the Applicant in writing to the Director requested to make a subsequent claim that in addition to the risk of harm from his creditor who is still looking for him everywhere in India, he also fears of being arrested and persecuted by the Indian police and authorities for participating in activities of the banned secession group Sikhs for Justice which supports the secession of Punjab from India as Khalistan while he was in Hong Kong in about 2019 including distributing their leaflets and attending a possession held in Tung Chun and Wanchai to persuade the local Sikh Indians to vote for the Referendum 2020 for the secession of Punjab from India as the State of Khalistan, but which was discovered by his creditor on the social media, and as a result the Applicant was later informed by his brother that the police had come looking for him in India, and had also issued a warrant for his arrest that the Applicant fears that he would be arrested and persecuted by the Indian authorities upon his return to his home country.

10.  The Applicant’s request was subsequently allowed by the Director to make his subsequent claim, which was to be assessed and determined on all the applicable grounds as before under the Unified Screening Mechanism (“USM”), and for which he attended another screening interview before an immigration officer with legal representation from DLS as in his previous claim.

11.  By a decision dated 21 October 2021 the Director again rejected the Applicant’s subsequent claim on all the applicable grounds upon finding that there were no substantial grounds for believing that there will be any real and substantial risk of him being harmed or killed by his creditor or followers due to the low intensity or frequency of past ill-treatment from them, that in any event as found in his previous claim that it was a private monetary dispute between them without any state or official involvement that state or police protection would be available to the Applicant upon his return to India as well as reasonable internal relocation for him to move safely to other part of the country away from his home district without any risk of being located by his creditor, while there is also no reliable evidence to support his claimed fear of being arrested or subjected to ill-treatment by the Indian authorities over his alleged participation in Hong Kong in the Referendum 2020 for the secession of Punjab from India or that he is being pursued or wanted by the Indian police in the absence of any documentary evidence as the authenticity of those documents and letters submitted by him said to be from the Indian police issuing a warrant for his arrest were all rejected as credible or authentic given the dubious manners in which they were written and obtained by his brother that it was not accepted that the Applicant will be arrested by the Indian authorities or subjected to any torture or persecution upon his return to his home country.

12.  On 4 November 2021 the Applicant again lodged an appeal to the Board against the Director’s decision, and for which he attended another oral hearing on 27 July 2022 before a different Adjudicator from his previous claim during which he also gave evidence and answered questions raised of his subsequent claim by the Adjudicator for the Board. On 19 January 2023 his appeal was again dismissed by the Board which also confirmed the Director’s decision.

13.  In its decision the Board found the Applicant’s evidence as to his claimed fear of harm from his alleged creditor over any loan or debt as doubtful which was further undermined by the findings of another adjudicator for the Board which rejected his credibility in his previous claim, while his claim of having participated in the Referendum 2020 activities in Hong Kong for the secession of Punjab from India was also rejected as not credible given the fact that he had never before shown any interest on such matter in his previous claim, that he was not able to demonstrate any knowledge or information on the pro-Khalistan movement other than the most simplistic platitudes, superficial and opportunistic, that his evidence as to his alleged participation were very vague and superficial, and that he was unable to provide any evidence in support of his assertion that his such activities were active in the social media that his creditor or the Indian authorities were able to access, while the authenticity of those documents submitted by him purportedly to show adverse interests of the Indian authorities or police in him was highly doubtful and rejected that the Board concluded that nothing asserted by the Applicant can be given any credence whatsoever and that he is not a witness of truth that his claim for non-refoulement protection again failed on all the applicable grounds.

14.  On 2 February 2023 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date and his subsequent written submissions he put forward various grounds for his intended challenge which can be summarized as follows:

(1) That the Board erred in determining that there is no realistic prospect of success in the Applicant’s subsequent claim by placing an unnecessarily high threshold in such determination as human lives are at stake;

(2) That the determination by the Adjudicator was just biased observations designed to reject the Applicant’s claim as the basis of rejection lacked completeness and evidence;

(3) That the Board had no proper basis for disbelieving that the Applicant did participate in the pro-Khalistan activities or to find that he had no apparent interest in Khalistan or a separate state for the Sikh people in the past until his previous non-refoulement claim was rejected in 2017 as a negative credibility indicator which is an unjust and unrealistic decision;

(4) That the Adjudicator failed to take into account of all the factors of the Applicant’s situation including the fact that he was without legal representation for his appeal to the Board and was not aware how to prove his claim or what sort of documentary evidence would be required to prove his involvement in the Khalistan movement when rejecting his claim on credibility.

15.  Most of these grounds are however just some broad and vague assertions of the Applicant containing a few key words or phrases but without the 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 Board biased against the Applicant, while it is the Applicant’s duty to present his evidence in support of his claim and given the fact that he had already gone through the same process in his previous claim when he was also without legal representation in his appeal before the Board. As such I do not find his complaints under grounds (1), (2) or (4) reasonably arguable for his intended challenge.

16.  As for the Applicant’s complaint under Ground (3) which turns on the Board’s assessment of the credibility of his claimed involvement or participation in the Khalistan movement in Hong Kong, I agree that there seems to be no proper basis for the Adjudicator to be suspicious of his such claim simply because he never disclosed or revealed in his previous claim any such interest in the Khalistan movement despite being born and raised as a Sikh in Punjab, as it was clearly his case as recorded in the Director‘s Decision that it was only after he had raised his previous claim that he later in January 2019 started to participate in such activities, and that it was in July 2019 when the pro-Khalistan group Sikhs for Justice was banned by the Indian government that it was only then when the risk of his feared harm from the Indian authorities was to arise (see [43] – [48] of the Director’s Decision).

17.  Nevertheless, the Adjudicator did rightly proceed to carefully assess and consider the Applicant’s evidence regarding his claimed participation and involvement in the Khalistan movement in Hong Kong and rejected the credibility of his such claim for the thorough and detailed analysis and reasoning set out in paragraphs 41 – 49 of the Board’s decision and with the benefit of hearing him in oral evidence and his answers raised of such claim during his appeal hearing, and of which I do not find any error of law or irrationality or procedural unfairness either in his process before the Board or in its reasons for rejecting the credibility of his claim, for which the Adjudicator did also carefully examine the detailed and comprehensive lists of wanted persons and fugitives from justice available on the website of the Punjab police without any mention of the Applicant or anyone with a similar name as his and his father’s in his home district as well as all other regions of the State of Punjab, as well as the absence of any evidence from the Applicant for his such alleged activities in the social media which I agree with the Adjudicator that he could have easily produced in support of his assertions if indeed they were true as alleged (see [43] of the Decision). As such and for the reasons given I do not find this complaint of the Applicant reasonably arguable for his intended challenge either.

18.  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.

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