HARJEET SINGH v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 46/2018

[2018] HKCFI 2129

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 46 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 36-year-old national of India who arrived in Hong Kong on 28 May 2014 and lodged a non-refoulement claim with the Immigration Department on the basis that if he returned to India he would be harmed or killed by a friend for unknown reason.  He was later released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in District Tarn Taran, Punjab, India.  After leaving school he worked in various jobs, got married with two children, and became a supporter of the political party Akali Dal Party.

3.  He had a close childhood friend PS who lived next door to each other in their village who was a supporter of the Congress Party.  He later became a police constable in 2000 and was eventually promoted to be a police inspector in the Jhabal Police Station.

4.  However, for reason unknown to the applicant the attitude of PS towards him changed one day in 2000 when he started to badmouth the applicant to the family of his girlfriend whom he was about to marry which nearly ruined the wedding and which PS subsequently refused to attend, and thereafter he made various false claims against the applicant which led to him being arrested by the police until a bribe was paid before he was released.

5.  The applicant then sought help from the village head who convened a meeting with the two of them during which they signed a reconciliation agreement but which PS subsequently torn up, and when the applicant complained to the police about his harassments, they refused to do anything as he was one of their own.

6.  One evening some men came to the applicant’s home with hockey sticks and beat him up in front of his family until his neighbors’ intervention.  As a result the applicant suffered bruises all over his body which required medical treatment.

7.  On the following day when the applicant tried to report the assault to the police, he was however arrested as a case had already been made against him for fighting, of which he suspected was by PS, and he was therefore brought before the Magistrate Court in Tarn Taran when he was granted bail pending trial, of which he claimed to be still pending against him.

8.  However more harassments from PS followed when one day in December 2012 during the celebration of the wedding of his cousin, the applicant was humiliated by him in front of the guests when he deliberately knocked off his turban, and when confronted by the applicant, PS threatened that he would not let him live.

9.  In January 2013 the applicant decided to move his family away to Amritsar to avoid PS’s harassments where they stayed for two months without incident until one day in March 2013 when his father-in-law received a telephone call from PS threatening that he would one day kill the applicant, and his father-in-law therefore advised the applicant to move further away to Chhattisgarh where he stayed for about a year without incidents until February 2014 when he returned to Amritsar as he missed his family.

10.  Several days thereafter the applicant was abducted by several men and was brought to a hut in a farmland where he was humiliated by being forced to drink alcohol which was against his religion, and had his hair and beard all shaved off, during which PS appeared and threatened him that he would soon be killed before he was finally dumped in his in-laws’ farmland.

11.  After the humiliation by PS the applicant moved his family to Chhattisgarh, but several weeks later PS went to the home of his parents and his in-laws to demand that they get him to come back to his home village and to vote for PS’s party otherwise he would be killed.  After discussing the matter with his father-in-law, the applicant decided to leave India for his own safety, which he did on 13 May 2014 for Bangkok first and then Macau, but after two unsuccessful attempts to enter Hong Kong from Macau when he was refused entry, on 28 May 2014 he arrived in Hong Kong with a non-refoulement claim, for which he subsequently completed a Non-refoulement Claim Form on 7 August 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

12.  By a Notice of Decision dated 5 November 2014 (“the Director’s 1^st Decision”) the Director of Immigration (“the Director”) rejected the applicant’s claim on all the 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 (“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”).

13.  In his decision the Director took into account of all the relevant circumstances of the applicant’s claim and assessed the risk of harm to him upon return to India as low due to the absence of any serious harms from PS in the past and that there is no evidence of any real intention on his part to seriously harm or kill the applicant, that it was a personal dispute between the two of them that in the absence of official involvement state 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 spread across a vast territory that it would not be unduly harsh for the applicant as an able-bodied adult with work experience to move to other area away from his home district such as Chhattisgarh where he had stayed before without incidents and where it would be difficult if not impossible for PS to locate him.

14.  On 20 November 2014 the applicant filed his appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s 1^st Decision, and for which he attended an oral hearing on 29 July 2015 before the Board but declined to testify or to answer questions put to him by the adjudicator for the Board.  On 30 March 2016 his appeal was dismissed by the Board which also confirmed the Director’s decision.

15.  In its decision (“the Board’s 1^st Decision”) the Board found in the absence of any oral evidence from the applicant that it was not possible to reliably assess the credibility of his claim, but even on his own case that he had not suffered any serious harm or injuries from PS that would put him within any of the applicable grounds, and that both state protection and internal relocation alternatives are available in India other than his home district that the applicant can safely reside without undue hardship as it was not accepted that PS would be willing or able to expend huge manpower or resources to locate him everywhere in India, when he had had numerous encounters with the applicant in the past but had never caused him any serious harms.

16.  On 3 January 2017 the Director on his own initiative by letter invited the applicant to submit additional facts 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 upon receiving and considering further representation from him which the Director found unrelated or irrelevant to his claim under BOR 2 risk, and by a Notice of Further Decision dated 20 January 2017 again rejected his claim (“the Director’s 2^nd Decision”).

17.  On 7 February 2017 the applicant filed his appeal to the Board against the Director’s 2^nd Decision, for which the Board did not find necessary to schedule another oral hearing and on 29 December 2017 again dismissed his appeal after determining that he failed to establish his claim under BOR 2 risk in the absence of any additional materials relevant thereto from the applicant (“the Board’s 2^nd Decision”).

18.  On 9 January 2018 the applicant filed his Form 86 for leave to apply for judicial review of “the decision of the Director dated 5 November 2014” (the Director’s 1^st Decision) and “the decision of the Board dated 29 December 2017” (he Board’s 2^nd Decision), and in it he put forward various grounds for his intended challenge which can be summarized as follows:

(1)     that the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in the applicant’s case that he was tortured at the behest and collusion of the police and the state law enforcement agencies as well as those high up in the political circle which render the state liable to the applicant for its public officials’ failure to protect its citizens;

(2)     that the Director failed to take such argument into account or to give sufficient weight to such argument before reaching its decision;

(3)     that the Director had listed relevant COI which support the applicant’s case that the police in India would not be able to protect its citizens but failed to consider or give sufficient weight to them in the consideration of his claim;

(4)     that the Director failed to consider the fact that corruption and incompetency in the administration in India is still a very serious problem which supported the applicant’s case;

(5)     that the Director had failed to attain the high standard of fairness that his decision was unreasonable in the public law sense; and

(6)     that the adjudicator failed to make sufficient enquiries before reaching his determination without taking into consideration of the fact that the applicant has no or limited options to bring his evidence before the Board and that he was in custody at the detention of the Immigration Department and failed to give sufficient opportunity for the applicant to arrange relevant evidence in support of his claim in his appeal.  

19.  By then the applicant was of course way out of time by more than three years with his application as regard the Director’s 1^st Decision, or for that matter his 2^nd Decision as well as the Board’s 1^st Decision, as Order 53, rule 4(1) of the Rules of the High Court, Cap 4A requires such application be made within three months from the date when grounds for the application first arose, and for which delays no explanation whatsoever has been provided by the applicant, and in any event as held in Re Moshsin Ali [2018] HKCA 549, as the Board’s decision had overtaken the Director’s decision, the court would only focus on the Board’s decision in an application for judicial review, and which I propose to do here in my consideration of the applicant’s ground for his intended challenge against the Board’s 2^nd Decision relevant to his claim under BOR 2 risk which is contained in ground (6) only.  

20.  While it may be true that at the time of the Director’s 1^st Decision the applicant was still being detained by the Immigration Department, there is no question that he has since been released on recognizance, as evidenced by his residential address at a private tenement recorded in the Director’s 2^nd Decision of 20 January 2017, whilst if there were any further representation that he had wanted to make or any additional evidence or materials that he might have wanted to produce or needed further time to do so, he never raised any such issue or requests with the adjudicator in his appeals to the Board when in fact he chose to remain silent at the oral hearing of his first appeal before the Board.  Even at the oral hearing for his application now before me, he merely repeated his claim as before without adducing any additional representation or materials relevant to his claim under BOR 2 risk, or for that matter any other applicable grounds for his claim.  I do not find any merit in this complaint of the applicant.

21.  As noted by the Director in paragraph 3 of his 2^nd Decision, although the applicant did response to the invitation to submit additional facts relevant to his claim under BOR 2 risk, he in fact did not provide any additional materials or facts on any other absolute and non-derogable rights under HKBOR in particularly BOR 2 risk, but nevertheless the Director proceeded to consider his such claim based on the information and materials then available to him before finding that the applicant had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR including right to life under BOR 2 being violated upon his return to India, a conclusion similarly reached by the Board on the same basis, of which both were in the circumstances entitled to do with their evaluation as primary decision makers in the absence of any legal error or procedural unfairness or irrationality being clearly and properly identified by the applicant: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Re Litoun Mounsy [2018] HKCA 537.

22.  Further, the fact that it has been established by both the Director and the Board in their respective decisions 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.

23.  In the premises and having proceeded to consider 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.

24.  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