MANJINDER SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 1568/2019

[2024] HKCFI 996

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1568 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 refused.

Observations for the Applicant:

1.  The Applicant is a 39-year-old national of India who arrived in Hong Kong on 15 September 2015, and when he was refused entry by the Immigration Department, he raised a non-refoulement claim for protection on the basis that if he returned to India he would be harmed or killed by the family of his ex-wife over their matrimonial disputes. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Pandori Gola, Tarn Taran, Punjab, India. After leaving school he worked as a farmer in his home village, and in 2007 married his wife as arranged by his parents, and raised a family with a daughter.

3.  Their marriage however did not fare well as there were frequent quarrels between them, and as the Applicant felt that he was being looked down upon with humiliations by his wife’s family which was wealthy with political connections.

4.  Eventually they decided to divorce but which then led to more arguments between them and their respective families over the terms of the divorce settlement and the return of dowry which boiled over to legal disputes in court for years and with false charges brought by his ex-wife’s family against his mother that caused the Applicant to suffer severe mental stress and pressure.

5.  Despite eventually that their court cases were resolved in 2014, there still remained serious hostilities from his ex-wife’s family, and on one occasion in March 2015 the Applicant was attacked in the street by one of his ex-wife’s brothers and friends with wooden sticks that he suffered injuries to his head and limbs and had to be taken to a hospital for medical treatments.

6.  After the attack the Applicant became fearful for his safety and fled to a neighbouring village to hide in his grandparents’ place, but in August 2015 when his grandparents started to receive threatening phone calls from his ex-wife’s family for harbouring him, the Applicant then fled to Goindwal to take shelter in his aunt’s place, and on 14 September 2015 he departed India for Hong Kong, and when he was 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 14 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 10 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 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 ex-wife’s family 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 that they would still have any adverse interest in him since he left the country, that in any event it was a private marital dispute between them 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 2.9 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 Mumbai 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 January 2016 before the Board during which he initially gave evidence and answered questions raised of his claim by the Adjudicator for the Board but subsequently refused to give any further evidence or to answer any more questions after being confronted by the Adjudicator with documents relevant to the divorce laws in his home country which contradict or did not agree with his account of events relating to his alleged divorce with his wife. On 11 February 2016 his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision the Board found material inconsistencies discrepancies and implausibility in the Applicant’s evidence as to his alleged divorce process with his wife and his settlement disputes with her family in accordance with the relevant COI as to the divorce laws in India that it doubted the credibility of his account of events as to their divorce or of his claim of fear of harm arising from his divorce disputes with his wife’s family that caused him to leave his country to come to Hong Kong to seek protection, and that in any event even if his account of divorce were real that his claimed risk arose from a private and personal dispute between them without any official involvement that state or police protection would be available to the Applicant upon his return to India that it concluded that his claim for non-refoulement protection failed on all applicable grounds.

11.  Meanwhile on 22 March 2017 the Director on his own initiative invited the Applicant to submit any additional facts which he considered 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 (“BOR2 Risk”), and in the absence of any response or reply from him, the Director by a Notice of Further Decision dated 7 April 2017 also rejected the Applicant’s claim under BOR 2 Risk 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 life under BOR 2 being violated upon his return to India.

12.  On 21 April 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 oral hearing and proceeded to deal with the appeal on paper, and on 5 June 2019 the Board also dismissed the Applicant’s appeal and confirmed the Further Decision of the Director on the basis of its earlier findings as noted above and that there was nothing in the evidence before the Board to show that the Applicant would be at risk of BOR 2 harm if refouled to India.

13.  On 10 June 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 or his supporting affirmation of the same date in which he just asserted that the Board disregarded his dangerous situation but without providing any relevant details or particulars or elaboration as to how it did so, nor did he request any oral hearing for his application. 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 of this second decision of the Board, or for that matter its earlier decision either.

14.  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.

15.  In the Applicant’s case, the Board already in its earlier decision rejected his non-refoulement claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 22 – 59 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim during his first appeal hearing as well as the material and information in the hearing bundle before the Board, and in the absence of any error of law or procedural unfairness in either process before the Board or in either of its decisions being clearly and properly identified by the Applicant, and as the factual basis of his claim even if real and even on his own case that his alleged risk arose from his marital disputes with his ex-wife’s family that simply did not engage the BOR 2 ground in its limited scope that I do not find any reasonably arguable basis for him to challenge the findings of the Board.

16.  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 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 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.

17.  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.

18.  For the given reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and accordingly I refuse to grant leave and 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