DHAP AZIZ PAL SINGH v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 261/2018

[2019] HKCFI 1782

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 261 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 last arrived in Hong Kong on 30 July 2013 with permission to remain as a visitor up to 13 August 2013 when he did not depart and instead overstayed and was arrested by police on 14 October 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 two cousins over a land dispute and/or by a fellow hockey player over an incident during a hockey practice.  He was subsequently released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Moga, Punjab, India.  After leaving school he became a professional hockey player but also owned a trading business in electronic parts.

3.  In 2002 upon the death of his father the applicant inherited a large piece of land in his home village.  Several months later two of his cousins offered to purchase his land but was rejected by the applicant.  Thereafter his cousins would harass and threaten him that if he did not sell his land to them, something bad would happen to him, and when he reported the threats to the police, they treated their dispute as a private matter and refused to do anything, but still his cousins would continue to harass and threaten him over his land.

4.  One day in 2013 the applicant practiced in a hockey game during which he accidentally hit the leg of a fellow hockey player Sunny who became furious and threatened the applicant.  Several days later the applicant was ambushed by Sunny and his friends on the street when he was attacked with wooden sticks and was later taken to the hospital for treatments.  Afterwards when he reported the matter to the police, they again treated it as a private dispute and refused to take any action.

5.  Several days later while he was out, several men came to the applicant’s home and warned his mother that Sunny did not want to see the applicant again on the hockey field,and that bad things would happen to him if he still refused to sell his land to his cousins.

6.  It was then that the applicant realized that his cousins had ganged up with Sunny to force him to sell his land to them, and as Sunny came from a wealthy and prominent family with his father being a senior member of the political party Akali Dal Party, the applicant felt it was no longer safe to remain in India, and so on 16 July 2013 he departed for Hong Kong, and after he was arrested by police for overstaying, he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 15 May 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  By a Notice of Decision dated 7 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”).

8.  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 and substantial risk of him being harmed or killed by his cousins or Sunny upon his return to India due to the low intensity and frequency of past ill-treatments from them, that it is not accepted that after all these years that his cousins or Sunny would still have any adverse interest in him, that in any event they were just private family or personal disputes 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 adult with work experience to move to other part of India away from his home district in large cities such as Delhi or Mumbai where it would be difficult if not impossible for his cousins or Sunny to locate him.

9.  On 19 June 2017 the applicant filed an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision of the Director, and for which he attended an oral hearing on 25 October 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 5 February 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.  In its decision the Board found serious credibility problems with respect of various material elements of the applicant’s claim, and that in any event with the availability of state or police protection and reasonable internal relocation alternatives in other part of India where the possibility of the applicant being located by his cousins or Sunny was very remote that his claim for non-refoulement protection failed on all applicable grounds. 

11.  On 20 February 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 repeated his alleged fears of being killed by his cousins over their land dispute in India, and that having formed a family in Hong Kong that he wanted to remain here to take care of his daughter. 

12.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an 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, as noted he did not put forward any grounds for his intended application, and in the absence of any error of law or procedural unfairness being shown by the applicant in the decision of either the Director or the Board, I am unable to find any reasonably arguable basis to challenge the findings of the Director or the Board.  

14.  Furthermore, the fact 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.

15.  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.

16.  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