JASWINDER SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 3337/2019

[2024] HKCFI 1106

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3337 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;

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 27 February 2014 when he was then aged 21, 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 certain local supporters of the political party Shiromani Akali Dal Party (“SAD”) as he supported their rival Indian National Congress (“INC”). He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Gatta Mundi Kassu, Shahkot Tensil, District Jalandhar, Punjab, India. After leaving school he worked as a mason in his home district, and followed his family’s tradition to support INC regularly attended their local meetings and activities including assisting in putting up banners and posters for his party during elections in his home village.

3.  During the 2013 general election while he was assisting in INC election campaign for their local candidates in his home village, the Applicant and his fellow supporters were attacked by a group SAD supporters with wooden sticks and other weapons but the Applicant managed to flee from the scene unharmed.

4.  After SAD won the majority seats in the election, some of their local supporters started to harass and intimidate the supporters of other political parties including INC, and one day in November 2013 the Applicant was confronted by a group of SAD supporters who demanded him to join their party, and when he refused, they attacked him by punching and kicking him that caused him to suffered cuts and bruises all over his body which required resting at home for several days.

5.  After the assault the Applicant became fearful for his safety and fled to Rajasthan to take shelter in the place of one of his father’s friends, and on 26 February 2014 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 22 April 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 13 June 2014 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”).

7.  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 reason for them to specifically target him for any political reason given that he was just a young 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 Faridabad in Haryana where INC was the majority party and where it would be difficult if not impossible for any SAD supporters to locate him.

8.  On 26 June 2014 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 September 2014 with his lawyer from DLS before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board and with submissions made on his behalf by his lawyer. On 11 May 2015 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board found no evidence or political reason for the SAD people to specifically target the Applicant for harm given that he was then just a 21 year old ordinary INC supporter without any official post in the party, that his encounters with those local SAD supporters were just common occurrences between political parties in India that it is not accepted that he would face any risk of being targeted or harmed by anyone for any political reason upon his return to India or that there would still be any adverse interest in him since he left the country, and that in the absence of any official involvement that state or police protection would be available to him if resorted to that it concluded that his claim for non-refoulement protection failed on all the applicable grounds.

10.  Meanwhile on 13 December 2016 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 the Applicant, the Director by a Notice of Further Decision dated 17 January 2017 also rejected his 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.

11.  On 24 January 2017 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 17 September 2019 before the Board during which he repeated his claim as before to the same Adjudicator as in his earlier appeal, and upon receiving no additional facts or evidence from him which may be relevant to the BOR 2 ground, the Board by a decision dated 15 October 2019 found the Applicant to have failed to make out a case of BOR 2 Risk and accordingly dismissed his appeal and confirmed the Further Decision of the Director.

12.  On 8 November 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 relief was given in his Form or in his supporting affirmation of the same date in which he just stated that he is not satisfied with the decision as he still has the same problem in his home country but without putting forth 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 either of its decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

13.  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.

14.  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 that he had failed to make out any case of BOR 2 risk, and that on the factual basis of even his own case the Applicant’s BOR 2 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.

15.  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 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.

16.  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.

17.  Moreover, the Applicant recently on 22 March 2024 filed an affirmation requesting to withdraw his application as he now wants to return to his home country without providing any further details as to what has happened to his claimed risk or problem in India.

18.  In the premises, as I am for the given reasons not satisfied 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 wish 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