TUR SUKHJINDER SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 182/2017

[2025] HKCFI 1192

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 182 OF 2017

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 / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 37-year-old national of India who last arrived in Hong Kong on 26 June 2014 as a visitor with permission to remain as such up to 10 July 2014 when he did not depart and instead overstayed, and was arrested by police on 16 July 2014. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim for protection on the basis that if he returned to India he would be harmed or killed by his uncle and cousins over their land dispute. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Tur Village, Khadoor Sahib, Tarn Taran District, Punjab, India. After leaving school, he assisted his father in farming on his father’s farmland inherited from his grandfather, but which was also coveted by his uncle despite having already inherited his own share, and which had led to frequent disputes over the distribution of the farmland between the 2 families.

3.  After his father transferred the farmland to the Applicant in 2004, his uncle turned his harassments towards the Applicant by demanding him to hand over the land to him, and when the Applicant refused, his uncle together with his sons one day in 2006 attacked him with hockey sticks that the Applicant suffered cuts and bruises all over his body.

4.  As a result the Applicant became concerned for his safety and fled the country in 2006 for Cyprus until 2011 when he returned to his home in India.

5.  However, soon the threats and harassments from his uncle and cousins resumed, and after another attack by them with wooden sticks, and with a warning that next time they would kill him if he still failed to give them the land, the Applicant fled to Majnukatila in New Delhi, and on 23 June 2014 he again departed India for Hong Kong where he overstayed, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 12 January 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 11 April 2016 and a Notice of Further Decision dated 14 February 2017 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”).

7.  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 uncle and cousins upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill him other than to press him to give up his land, that in any event it was a private land dispute between him and his uncle only 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 working experience to move to other areas of the country away from his home district in large cities such as New Delhi where it would be difficult if not impossible for anyone to locate him.

8.  The Applicant then lodged his appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decisions, and for which he attended an oral hearing on 22 February 2017 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator. On 30 March 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear from his uncle over the land dispute that caused him to leave his country to come to Hong Kong to seek protection, that his credibility was further undermined by his failure to raise his claim upon first arriving in Hong Kong until after his arrest by the police or to provide any documentary evidence to corroborate his bare assertion that he owned any farmland in his home village that it did not find the Applicant as a witness of truth, and concluded that the Applicant will not face any real risk of harm or ill-treatment of any sort upon his return to India that his claim for non-refoulement protection failed on all applicable grounds.

10.  On 5 May 2017 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 he put forward various grounds for his intended challenge:

(1)  That he was not provided with legal representation in his appeal before the Board;

(2)  That he was not given language assistance in his appeal before the Board which was conducted in English of which he could not understand that it was a miscarriage of justice.

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.  For his complaint in Ground (1) of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

13.  The Applicant already had the benefit of legal representation in presenting his case to the Director by DLS, and was able to testify and make representations in his appeal hearing before the Board with the assistance of an interpreter and to answer questions put to him by the Adjudicator without difficulty. In the circumstances I do not find anything amiss arising from the lack of legal representation in his appeal process, and that this ground is not reasonably arguable for his intended challenge.

14.  As for his complaint under Ground (2) of not being provided with language assistance in his appeal to the Board, it is clearly factually incorrect as he was assisted by an interpreter in the Punjabi language during his appeal hearing, and of which he never raised any issue and had in fact confirmed to the Board of no problem understanding the interpreter. As such I do not find any merits in this complaint of the Applicant either.

15.  Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, a decision also agreed and 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 all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his application.

18.  As the Court has recently been informed by the Immigration Department that the Applicant has subsequently been removed from Hong Kong to his home country, I therefore direct that a request be made to the Director to use his best endeavour to forward a copy of this decision together with the sealed order to the Applicant in India.

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