GURPREET SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 1313/2018

[2021] HKCFI 1650

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1313 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 41-year-old national of India who last arrived in Hong Kong on 26 June 2005 with permission to remain as a visitor up to 10 July 2005 when he did not depart and instead overstayed and was arrested by the police on 5 May 2008 over some criminal offences for which he was subsequently convicted and sentenced to prison for 7 months, and upon his discharge from prison and was referred to the Immigration Department for deportation, he raised a torture claim on the basis that if he returned to India he would be harmed or killed by his uncle and cousins over a land dispute in his home village, and after his torture claim was treated as withdrawn he then sought non-refoulement protection on the same basis. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Awan, District Amritsar, Punjab, India. After leaving school he assisted in his father’s farming on the farmland which his father inherited from his grandfather’s estate as his share of the inheritance, but his uncle had coveted his father’s share of the farmland and had frequently raised issues over his father’s title in the land which had led to frequent conflicts between the two families.

3.  One day in April 2001 his father was found dead on the farmland, and after the police treated it as a case of suicide, the Applicant as the male heir in his family became entitled to his father’s land which was however disputed by his uncle, and after being assaulted by his uncle’s sons on two occasions, the Applicant became fearful for his life, and so on 28 May 2005 he departed India for China, and from there he later travelled to Hong Kong where he subsequently overstayed, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Supplementary Claim Form (“SCF”) on 28 August 2017 and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

4.  Whilst being released on recognizance pending determination of his claim, the Applicant was again arrested by the police on 15 March 2017 for undertaking unauthorized employment for which he was subsequently convicted and sentenced to prison for 15 months.      

5.  By a Notice of Decision dated 29 September 2017 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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 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 it was a private family dispute between them over land 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”) shows 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 parts 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 uncle to locate him.

7.  On 11 October 2017 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 18 May 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 28 June 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board found the Applicant’s claim a case of dispute over some farmland in his home village between him and his uncle and cousins without any state or official involvement that state/police protection would be available to the Applicant upon his return to India 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 by his uncle or cousins that his claim for non-refoulement protection failed on all applicable grounds.    

9.  On 6 July 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, and in his supporting affirmation of the same date he merely stated that the decision disregarded his dangerous situation without providing any particulars or elaboration how it did so, nor was he able to at the hearing of his application or put forward any proper ground for his intended challenge. As such and in the absence of any error of law or irrationality 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 for his intended challenge.

10.  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.

11.  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 parts 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.     

12.  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.

13.  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