PARAMJIT SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 149/2018

[2019] HKCFI 1045

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 149 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 29-year-old national of India who entered Hong Kong illegally on 11 January 2015 and was arrested by police on 12 January 2015.  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 supporters of rival political party Samajwadi Party (“SP”).  He was then released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Lukmanpur Bahera, Powayan, Shahjahanpur, Uttar Pradesh, India to a family of supporters of the political party the Congress Party (“CP”) of which he also became a supporter by regularly attending its rallies and putting up posters and distributing leaflets for the party.

3.  In May 2014 during the general elections in Lukmanpur Bahera, the applicant was invited by supporters of rival SP to join their party, and when he refused, they would slap and punch him with threats of violence against him if he continued to resist their invitation.

4.  On the election day, large number of supporters of the two rival parties gathered in the village, and when arguments broke out between them which led to a mass brawl when the supporters attacked each other with wooden sticks and other weapons during which the applicant struck someone whom he suspected to be a SP supporter in the head which caused an open wound, he became panicked and fled to his uncle’s place in Mohammadi where he stayed for two months, but when he heard that the SP people were looking for him for revenge, he became concerned for his own safety that he decided to leave India, and so on 18 December 2014 he departed for China, and from there he sneaked into Hong Kong and raised his non-refoulement claim for protection with the Immigration Department, for which he later completed a Non-refoulement Claim Form on 1 November 2016 with legal representation from the Duty Lawyer Service.

5.  By a Notice of Decision dated 15 December 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 (“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 all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm from those SP people to the applicant upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that there is no reliable evidence that he had been specifically targeted by the SP people, that in the absence of 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 New Delhi or Mumbai where it would be difficult if not impossible for those SP people to locate him.

7.  On 21 December 2016 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 on 10 November 2017 before the Board but after confirming his claim as set out in the documents in the hearing bundle, he declined to give any evidence or answer any questions despite being invited and advised to do so by the adjudicator for the Board.  On 7 December 2017 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board expressed concerns in relation to fundamental aspects of the applicant’s claim with substantial doubts that required clarifications but in the absence of meaningful oral testimony from him that the Board had difficulties accepting his account of being involved in the election day scuffle that led to him being pursued by the SP supporters, and with multiple other issues relating to the credibility of his claims remained unanswered, it concluded that on the basis of the materials and evidence before it that it did not accept that the applicant faces any of the applicable risks should he return to India, and that his claim for non-refoulement protection has not been made out.

9.  On 1 February 2018 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form in which he merely stated that “I have danger to my life in India”, and in his supporting affirmation of the same date in which he stated as follows:

“ I want to apply Judicial Review because my torture claim and appeal is closed already. My case is I have danger to my life in India. I will be kindly thankful to you for my help.”

10.  The applicant did not request for an oral hearing, and has not identified any legal error or procedural unfairness in the Board’s decision or put forward any reasonably arguable ground 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, as 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 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 Re Litoun Mounsy [2018] HKCA 537.

12.  In the applicant’s case, in the absence of any oral testimony or answers to clarify and substantiate his claim, the Board was entitled to find on the basis of the materials available before it that the applicant has failed to establish his non-refoulement claim for the reasons set out in its decision as follows:

“ 43. Significantly, as the Board drew to the appellant’s attention at the hearing, he made no claims to have injured a Samajwadi party member when he was first detained and completed his Interview Report containing his Grounds for non-removal on 14 January 2015. Instead, there he only spoke of Samajwadi party members coercing him to join their party, assaulting him and threatening to kill him. No mention is made of the election day incident which later becomes such a critical aspect of his claims. When the Board put its concerns to the Appellant in this respect, he again declined to comment. While accepting that somebody else may have written the substantive contents of the Appellant’s Interview Report, the Appellant indicated at hearing that he had signed that report attesting to the accuracy of the contents thereof. Without the aid of an explanation by the Appellant for his failure to mention this incident in his initial Interview Report, the credibility of the Appellant’s claims remain unanswered. Indeed, multiple issues relating to the credibility of the Appellant’s claims go unanswered. The Board therefore cannot be satisfied of the circumstances in which he left India and whether or not he is unable to return to India for the reasons he claims.

44. In any event, the scuffle which the Appellant describes occurred over three years ago and the Appellant adduced no evidence that the Samajwadi Party is in a position of power in Uttar Pradesh as a result of the 2014 and 2017 elections. Indeed, in the 16^th Lok Sabha general elections, which was held in April–May 2014, it was the Bharatiya Janata Party, not the Samajwadi Party, which won the election. More recently, the Bharatiya Janata Party consolidated its hold on power, again winning the 2017 elections. Other than very vague claims that ‘according to [his] friends, people from the Samajwadi Party are still trying to locate [him] in India’, the Appellant’s evidence does not point to any ongoing threat to him. The moments of violence that he experienced were entirely within the context of the 2014 election campaign, to the extent that the Board were to accept these claims at all. However, even having regard to the Appellant’s claims to be stressed and under tension as a result of his incarceration, the Board is not satisfied of the credibility of his claims in the absence of some form of reliable evidence, be it either documentary, such as corroborating material from independent sources, or oral testimony of the Appellant. On the Appellant’s own account at hearing and elsewhere, he was not again personally threatened or harmed by Samajwadi part members despite remaining in India for around 7 months after this incident. Only very vague claims were raised in relation to Samajwadi party members looking for him.

45.  On the basis of all the evidence before it, the Board does not accept that the Appellant faces any risk of proscribed harm should he return to India in the reasonably foreseeable future.”

13.  As noted above, the applicant did not identify any legal error or procedural unfairness or irrationality in the Board’s decision, and in the absence of which I am unable to find any reasonably arguable basis to challenge these findings of the Board.

14.  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, and as confirmed by the Board in its finding of the much reduced influence of SP in India after losing the 2014 and 2017 elections,there is simply no justification to afford the applicant 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