MANDEEP SINGH v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 2537/2018

[2022] HKCFI 1661

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2537 of 2018

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 26-year-old national of India who entered Hong Kong illegally on 21 January 2016 and surrendered to the Immigration Department on 18 February 2016 when he raised 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 between his uncle and his father in their home village. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Kaler Mangat, Amritsar, Punjab, India where both his father and his uncle inherited their equal share of land from his grandfather in their home village, but his uncle had forcefully seized some of his father’s share of the land for his own use, and when the Applicant later confronted his uncle to demand for the return of his father’s land, his uncle refused and instead made threats against him, and after several occasions when he was beaten by men sent by his uncle, the Applicant became fearful for his life, and so on 26 November 2015 he departed India for Malaysia, and on 1 December 2015 he arrived in Hong Kong but was refused entry and was returned to India on the same day.

3.  About one month later on 11 January 2016 the Applicant again departed India but this time for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 28 March 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

4.  While being released on recognizance pending the determination of his claim, the Applicant was on 27 November 2017 arrested by police for possession of another person’s identity card, and was subsequently convicted and sentenced to prison.

5.  By a Notice of Decision dated 27 April 2018 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”).

6.  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 uncle and followers upon his return to India due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of his uncle to seriously harm or kill him, that it was in any event a private land dispute between his family and his uncle in their home village 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 adult with working 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.

7.  On 14 May 2018 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 October 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 2 November 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board found on the basis of the Applicant’s evidence given in his appeal before it that whatever problems he might have with his uncle in the past arose from what was essentially a land dispute between his uncle and his father but all his family members including his father have since been living peacefully and safely in his home village without any problems from his uncle since the Applicant had left the country that it was not accepted that there would still be any risk of harm that he may face from his uncle upon his return to India, and that in any event in the absence of any official involvement that state/police protection would be available to the Applicant if needed as well as reasonable internal relocation for him to move safely to other areas away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

9.  On 12 November 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both decisions of the Director and the Board, and put forth the following grounds for his intended challenge:

(1)  That the Director and the Adjudicator reached their decisions wrongly in that they were unfair and unreasonable in failing to that right to life must be protected by criminal law from extra-judicial killings such as the Applicant believes that they failed to give him sufficient time and opportunity to arrange relevant evidence for his non-refouleemnt claim as well as his appeal; and

(2)  That it was a clear case of unfair attitude shown by the Director in which itself is enough to render his decision void in failing to consider that corruption and incompetency of the administration in the Applicant’s home country is still a very serious problem as reported by various human rights organizations in their reports which stated testament to the Applicant’s assertions that the Director failed to attain high standards of fairness required by Wednesbury test in the decision.

10.  These are however just some broad and vague assertions of the Applicant without sufficient details or particulars or proper elaboration as to how they apply to his case or in what way would they be relevant to his claim which was based even on his own case a private land dispute between his family and his uncle without any official involvement that I fail to see how it would engage the BOR 2 ground of right to life or how extra-judicial killings or corruptions or incompetency of the administration in his home country would be relevant to his case, or in what way was he not given sufficient time or opportunity to present his case to the Director or the Board.

11.  As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant in his proposed grounds, I do not find either of them reasonably arguable for his intended challenge or any merits in his intended application.

12.  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.

13.  In the Applicant’s case, 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 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.

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, 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