CHATER SAINGH v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 1046/2018

[2021] HKCFI 82

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1046 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 34-year-old national of India who arrived in Hong Kong on 13 February 2013 with permission to remain as a visitor up to 27 February 2013 when he did not depart and instead overstayed and was subsequently arrested by police on 28 July 2013. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his former girlfriend’s family who were against their relationship. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Daginana City, Jammu District, India as a Sikh. After leaving school he assisted in his father’s flour shop before joining a decoration company in Jammu, and dated a Muslim girl from a wealthy and influential family in his home district, but in 2012 when their relationship was discovered by her family who were against their relationship due to their different religions and social status, her brothers had on several occasions assaulted the Applicant in public, and threatened to kill him if he continued to see their sister.

3.  In order to avoid the threats from his girlfriend’s family, the Applicant was transferred by his company to their branch in New Delhi, and from there he secretly maintained his contact with his girlfriend.

4.  In February 2013 he was sent by his company to Hong Kong to attend an exhibition, during which he heard that his girlfriend in India had tried to commit suicide as her family forced her to marry someone chosen by them, and for which they blamed him and had threatened to kill him, which caused the Applicant to be afraid to return to India, and so he overstayed in Hong Kong, and upon his subsequent arrest by the police, he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 2 November 2015 with legal representation from the Duty Lawyer Service but failed to attend any screening interviews before an immigration officer due to alleged medical or other reasons. 

5.  While being released on recognizance pending determination of his claim, the Applicant was again arrested by police on 4 December 2013 for undertaking unauthorized employment for which he was subsequently convicted and sentenced to prison for 14 months.   

6.  By a Notice of Decision dated 31 October 2016 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 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 found no substantial grounds for believing that there will be any real and substantial risk of him being harmed or killed by his girlfriend’s family upon his return to India due to the low intensity and frequency of past ill-treatment from them, that his problem with his girlfriend’s family was a private personal 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 (“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 India away from his home district in large cities such as New Delhi where he had stayed before without incidents and where it would be difficult if not impossible for his girlfriend’s family to locate him.

8.  The Applicant then 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 7 March 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 31 May 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board found serious inconsistencies and discrepancies in the Applicant’s evidence of his claim that it doubted his alleged relationship with his girlfriend or the threats from her family, and that in any event with his own admission at the hearing of having lived in New Delhi for sometimes without incidents and that it would be safe for him to return there or to other places in India without any risk of being located by his girlfriend’s family that his claim for non-refoulement protection failed on all applicable grounds.  

10.  On 8 June 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 in his Form, and in his supporting affirmation of the same date he merely stated that he wants to set aside those decisions because they disregarded the danger and threats that he would face in his home country but without providing any particulars or elaborations how they did so or putting forward any other proper grounds for his intended challenge, nor did he request any oral hearing for his application. As such I do not find any of them reasonably arguable for his intended challenge.

11.  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.

12.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 31 – 51 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law 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 to challenge the finding of the Board.  

13.  Furthermore, the fact is that it has been established by both the Director and the Board in their respective 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, 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.  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.

15.  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