KULLAR DALJEET SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 833/2019

[2021] HKCFI 437

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 833 of 2019

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 (counsel for) 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 31-year-old national of India who arrived in Hong Kong on 22 June 2015 but when he was refused entry by the Immigration Department, he then raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his maternal uncle over some land disputes in his home district. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in a village in Gidderbaha, District Muktsar, Punjab, India. After leaving school he worked as a salesperson in his home village.

3.  In 2002 his father had a heated argument with his maternal uncle over his grandmother’s land which turned into a fight during which his father was hit on the head with a glass bottle by his uncle. After the incident and to avoid further conflicts with his uncle, his father moved the family away from District Muktsar.

4.  In 2004 his uncle killed his wife after she refused to transfer her share of the grandmother’s land to him, for which his uncle was convicted and sentenced to prison for 14 years, but in 2011 his uncle was granted an early release from prison, and when his uncle started to make threats against the Applicant’s family over the grandmother’s land, the Applicant and his family again moved to another district to avoid his uncle.

5.  However, his uncle was soon able to locate the Applicant’s family, and when he confronted the Applicant at his home, his uncle blamed the Applicant for his misfortune and started beating the Applicant until intervened by the neighbours and left. After the attack the Applicant became fearful for his life, and on 23 January 2013 he departed India for Indonesia until September 2013 when he returned to India.

6.  For almost 2 years the Applicant stayed in Canal Colony without incidents, but one day in April 2015 he ran into his uncle and his men in the market who proceeded to beat him with hockey sticks. Afterwards the Applicant felt it was no longer safe to remain in India, and so he fled to Delhi and on 22 June 2015 he departed for Hong Kong, and when he was refused entry, he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 30 July 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.     

7.  By a Notice of Decision dated 22 September 2015 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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 of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his uncle and his men upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that his problem with his uncle was a private family dispute 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”) 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 part of India away from his home district in large cities such as Delhi or Kolkata where it would be difficult if not impossible for his uncle to locate him.

9.  On 8 October 2015 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 15 December 2015 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 15 January 2016 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.  In its decision the Board accepted that the maternal uncle may be hostile towards the Applicant but found no evidence of any real intention on his part to seriously harm or kill the Applicant over their family dispute that any such risk to the Applicant was assessed as low upon his return to India, and that in any event with no evidence of any official involvement that state/police protection would be available to him 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.   

11.  Meanwhile on 26 January 2017 the Director on his own initiative invited the Applicant to submit any additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”), and in the absence of any response form the Applicant, the director by a Notice of Further Decision dated 15 February 2017 also rejected the Applicant’s claim under BOR 2 risk upon finding that he had failed to establish any personal or real risk of his absolute and non-derogable rights under the HKBOR being violated including right to life under BOR 2 upon his return to India.

12.  The Applicant again lodged an appeal to the Board against this further decision of the Director, and for which he attended another oral hearing on 11 February 2019 before the Board during which he again gave evidence and answered questions put to him by the Adjudicator for the Board. On 11 March 2019 his appeal was again dismissed by the Board which also confirmed the further decision of the Director.

13.  In this decision the Board found no additional facts from the Applicant to support his claim under BOR 2 risk, and maintained its findings in its earlier decision as to the availability of state/police protection and reasonable internal relocation to the Applicant that it concluded that his claim also failed under the BOR 2 ground.  

14.  On 26 March 2019 the Applicant filed his Form 86 for leave to apply for judicial review of this second decision of 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 claim that his life would be in danger if returned to his home country without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application.

15.  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.

16.  In fact, on the facts of the Applicant’s claim and in the light of the scope and threshold of a BOR 2 claim, there is simply no room for engaging the BOR 2 ground in the absence of any additional facts or grounds from the Applicant even in his present application now before me that could advance his case under the BOR 2 ground.

17.  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.

18.  In any event, the fact is that it has been established by both the Director and the Board in their earlier 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.     

19.  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.

20.  Furthermore, recently on 16 December 2020 the Applicant filed an affirmation requesting to “cancel” his application as he has decided to go back to his home country.

21.  In the premises, and as I am not satisfied for the reasons stated above that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation of his intention to return to his home country, I accordingly dismiss 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