AMANDIP SINGH v. ADJUDICATOR OF TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 461/2018

[2020] HKCFI 1434

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 461 of 2018

     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 refused.

Observations for the Applicant:

1.  The Applicant is a 30-year-old national of India who arrived in Hong Kong on 28 November 2013 with permission to remain as a visitor up to 12 December 2013 when he did not depart, and instead overstayed until 21 January 2014 when 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 paternal uncle for causing serious injuries to his uncle’s son during a fight.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Talwandi Virk, Gurdaspur, Punjab, India. After leaving school he worked as a carpenter to make his living.

3.  Many years ago the Applicant’s father had purchased a piece of land jointly with the Applicant’s uncle, a wealthy local businessman with political connections.  Later after his uncle had sold the land but without paying to his father his share of the profit, it had led to conflicts between the two families.

4.  As a result the Applicant’s father had filed a complaint to the police against his brother, but the police failed to carry out any investigation which further fueled the feud between the two families.

5.  One day in early 2013, the Applicant and a friend ran into his uncle’s son and his friends when the Applicant and his cousin broke into a heated argument over their family’s dispute, which then turned into a fight between the two groups during which both the Applicant and his cousin sustained serious injuries and were admitted to the local hospital.

6.  As the Applicant’s injuries to his arm and eyebrow were less severe and he was therefore discharged after 1 ½ months, but his cousin’s injuries to his head were much more serious and he was hospitalized for almost six months, and for which the Applicant’s uncle blamed the Applicant and swore to take revenge against him.

7.  One day in May 2013 when the Applicant saw his uncle with his men armed with knives and choppers approaching from a distance, he immediately turned around and ran home to his father who had to plead with his brother to leave with his men.

8.  Several days later when the Applicant heard that his uncle had filed several false charges of illegal arms and drugs against him to the police, he immediately fled from his home to hide in his aunt’s home in Batala, and later when he heard that his uncle and the police were still looking for him, he then moved to various other places, and eventually ended up in Delhi, but as he felt it was not safe to remain in India, he therefore departed on 26 November 2013 for Thailand and then Macau before arriving in Hong Kong on 28 November 2013, and upon his surrender for overstaying, he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 13 March 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

9.  By a Notice of Decision dated 27 June 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 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 there is no reliable evidence that he was being pursued by the police as he was able to leave India without any problem, that his problem with his uncle was a private family dispute 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 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 where it would be difficult if not impossible for his uncle to locate him.

11.  On 7 July 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 on29 November 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 7 March 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

12.  In its decision the Board accepted that the Applicant or his family may have certain disputes with his uncle in his home country but found inconsistencies and discrepancies in his evidence about the alleged threats from his uncle that it was not satisfied that he had any well-founded fear of harm upon his return to India, and given the nature of his family dispute and in the absence of any actual ill-treatment to him that it concluded that his claim for non-refoulement protection failed on all applicable grounds.

13.  On 20 March 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given, and in his supporting affirmation of the same date he merely stated that the decisions of the Director and the Board in rejecting his claim for non-refoulement protectionare not correct as they failed to consider the realities in India before reaching their decisions, but without providing any further details or particulars or elaborations as to how they were so.  As such and in the absence of any error of law or procedural unfairness in his process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant with sufficient particularity or elaborations, I do not find any reasonably arguable basis to challenge the findings of the Director or the Board.

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.  Furthermore, the fact that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, a decision also confirmed by the Board,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 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.

17.  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