AJIT PAL SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 1874/2019

[2024] HKCFI 2203

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1874 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 the Applicant in open court / the Applicant being absent in open court;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 41-year-old national of India who last arrived in Hong Kong on 25 August 2015, and when he was refused entry by the Immigration Department, he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by certain local supporters of the political party Shiromani Akali Dal Party (“SAD”) as he supported their rival Indian National Congress Party (“INC”). He was subsequently being released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Lonian Khas, District Jalandhar, Punjab, India. After leaving school he assisted in his father’s store, got married and raised a family with 2 children in his home village, and followed his father’s footstep to support INC without holding any official post in the party but regularly attended their local meetings and activities.

3.  In early 2015 while carrying out some propaganda work during an election campaign for an INC candidate, the Applicant was approached by some local SAD supporters who demanded him to join their party, and when he refused, they attacked him with wooden sticks that he suffered cuts and bruises all over his body.

4.  Thereafter as the harassments and intimidations from those local SAD supporters had persisted, the Applicant left India on 23 March 2015 for Hong Kong but was refused entry by the Immigration Department and was repatriated to India.

5.  Upon returning to India, as he was still fearful for his life in his home village, the Applicant therefore stayed in Kolkata, and in May 2015 he again departed India but this time for China where he stayed for about one month before returning to India in June 2015.

6.  However, shortly after returning to his home village, he was again attacked by the same group of SAD supporters that he had to seek medical attention in the hospital, and upon his discharge from hospital, he was advised by his parents to leave the country again to save his life, and so he departed India again for Hong Kong on 25 August 2015, and when he was again refused entry by the Immigration Department, he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 9 October 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  By a Notice of Decision dated 9 November 2015 the Director of Immigration (“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 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 those local SAD supporters 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 or any political reason for them to specifically target him given that he was just an ordinary INC supporter without holding any official post in the party, that in any event in the absence of 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 young man with working experience to move to other areas of the country away from his home district in large cities such as Delhi where it would be difficult if not impossible for anyone to locate him.

9.  On 25 November 2015 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 25 February 2016 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 14 March 2016 his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence of being involved in political activities for INC or that he had been targeted by SAD supporters for harm that it doubted the credibility of his claim of fear of those SAD supporters that caused him to leave his country to come to Hong Kong to seek protection, and that in any event even if such risk were real that in the absence of any official involvement that state or police protection would be available to him upon his return to India that it concluded that his claim for non-refoulement protection failed on all the applicable grounds.

11.  Meanwhile on 1 February 2017 the Director on his own initiative invited the Applicant to submit any additional facts which he may consider relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute and non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”), and after receiving no reply or response from him, the Director by a Notice of Further Decision dated 22 February 2017 also rejected The Applicant’s BOR 2 Claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under HKBOR including right to live under BOR 2 being violated upon his return to India.

12.  On 28 June 2017 the Applicant again lodged an appeal to the Board against this Further Decision of the Director, for which the Board on this occasion did not hold any further oral hearing and proceeded to deal with the appeal on paper, and on 27 June 2019 the Board also dismissed his appeal upon finding nothing in the evidence before the Board to show that the Applicant would be at risk of BOR 2 harm if refouled to India, and that it also confirmed the Further Decision of the Director.

13.  On 4 July 2019 the Applicant filed his Form 86 for leave to apply for judicial review of this second decision of the Board, and put forward the following grounds for his intended challenge:

(1)  That the Board reached the decision wrongly in assessing his non-refoulement claim as the decision was not fair or reasonable as required by the Wednesbury test in failing to recognize that his life must be protected by the criminal law from extra-judicial killings that he may face if deported back to his home country;

(2)  That the Board failed to appreciate or place proper or sufficient weight or importance to the presence of State Acquiescence in his case which led to an unfair outcome of rejecting his claim without realizing that he was tortured at the behest of the state law enforcement agencies and politicians that the state would be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(3)  That the Adjudicator acted unreasonable and was procedurally unfair by placing too much reliance on COI but failed to take into account the Applicant’s personal background and experience in assessing his claim;

(4)  That the Board had listed relevant COI which supported the Applicant’s aversions that the police in his country would not be able to protect but failed to consider or give sufficient weight to such evidence and instead ruled otherwise against the Applicant’s case which was a clear case of unfair attitude shown by the Board which in itself is enough to render its decision void; and

(5)  That the Board failed to attain the high standard of fairness required by the Wednesbury test in failing to take into account the Applicant’s argument that corruption and incompetency of the administration in the Applicant’s country is still a very serious problem as various human rights organizations had compiled reports that stated testament to the Applicant’s assertions.

14.  These are however all just bare and vague assertions of the Applicant containing a few key words or phrases but without any relevant or necessary particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy were State Acquiescence or extra-judicial killings to the Applicant’s case when on the factual basis of even his own case that it was just some common conflicts between local supporters of rival political parties within his home village without any official involvement. As such, as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for his intended challenge.

15.  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.

16.  In the Applicant’s case, the Board rejected his BOR 2 Claim essentially on its correct finding that in the absence of any additional facts or evidence from him of his absolute and non-derogable rights under HKBOR including BOR 2 risk being violated upon his return to India, and that on the factual basis of even his own case that his claim simply did not engage the BOR 2 ground on its limited scope. As such, and in the absence of any error of law 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 to challenge such finding of the Board.

17.  Furthermore, the fact is that it has also been correctly established by the Director in his earlier decision that the risk of harm in the Applicant’s claim under all other applicable grounds 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.

18.  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 under all the applicable grounds.

19.  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.

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