KHOSA NAVKIRAN SINGH v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 884/2018

[2019] HKCFI 2289

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 884 of 2018

 Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 26-year-old national of India who arrived in Hong Kong on 5 May 2015 with permission to remain as a visitor up to 19 May 2015 when he did not depart and instead overstayed until 14 July 2015 when he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his paternal uncle over a land dispute in his home village. He was subsequently released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Village Jhandiana Garbi, District Moga, Punjab, India where he lived with his parents and his grandfather who owned a piece of land in the same village and close to their house.

3.  One day in 2014 his paternal uncle came to his home to demand his grandfather to give him the land, and when his grandfather refused as he had intended to pass the land to the applicant’s father since he was the one taking care of him.  On hearing this the uncle became furious and before he left, he threatened to kill the applicant if his grandfather was to pass the land to his father.

4.  Thereafter nothing eventful occurred until one day in February 2015 when the applicant was confronted by his uncle who pushed him around and again threatened to kill him if his grandfather was to give the land to his father.

5.  When the applicant told his father about his uncle’s threats, his father then reported the matter to the local police, but it seemed that no action was taken.

6.  One afternoon in April 2015 when the applicant was working in his father’s shop,two men entered the shop and claimed to be sent by his uncle to demand the applicant to ask his grandfather to give the land to his uncle or else he would be killed.

7.  After the applicant told his father of the threats, his father became concerned for the applicant’s safety and advised him to leave India, and so on 4 May 2015 the applicant departed for Hong Kong where he overstayed and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 10 July 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

8.  By a Notice of Decision dated 28 August 2017 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 his absolute or non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 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”).

9.  In his decision the Director took into account all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm from his uncle to the applicant upon his return to India as low due to the absence or low intensity and frequency of past ill-treatment from him, that there was no real intention for his uncle to harm or kill him over the land dispute, that in any event it was a private family dispute 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 young man to move to other part of India away from his home district in large cities such as Mumbai or Delhi where it would be difficult if not impossible for his uncle to locate him.

10.  The applicant then filed an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 14 February 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 12 April 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

11.  In its decision the Board found contradictions and inconsistencies in his statements of events occurred in India given to the Director and that he was also evasive with his evidence in his appeal before the Board that he was not considered as a truthful witness, and that in any event he can always relocate to other places in India to avoid any risk of harm from his uncle that his non-refoulement claim failed on all applicable grounds.

12.  On 21 May 2018 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and put forward the following grounds for his intended challenge:

 (1) that the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in the applicant’s case which led to an unfair outcome of rejecting his non-refoulement claim;

 (2) that the Director failed to recognize that the applicant was tortured at the behest of and in full collusion of the police and the state law enforcement agencies as well as those in high places in the political circle;

 (3) that the Director failed to take into account that the state should be rendered liable to the applicant by the state officials’ failure to provide reasonable protection for its citizens under the duty of due diligence;

 (4) that the Director failed to properly consider the relevant COI which supported the applicant’s case that the police in India would not be able to protect him;

 (5) that the Director exhibited an unfair attitude by relying only on those COI which suited his preconceived conclusion;

 (6) that the Director failed to recognize that corruption and incompetency of the administration in India was still a very serious problem which supported the applicant’s case; 

 (7) that the Director failed to attain the high standard of fairness required by the Wednesbury test in his decision which should be considered as unreasonable in the scope of public law; 

 (8) that the adjudicator failed to make sufficient enquiry before finalizing his decision;and

 (9) that the adjudicator failed to give sufficient chance to the applicant to arrange relevant evidence in support of his non-refoulement claim as well as his appeal.  

13.  These are however all just broad and vague assertions of the applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the adjudicator had erred in their  decisions, or in what way did they fail to take into account relevant COI or make proper enquiry in respect of his claim, or how did they fail to apply high standards of fairness in assessing his claim, or why was state acquiescence relevant to his case, or in what way did the adjudicator fail to give him time or opportunity to provide relevant evidence in support of his claim or appeal.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

14.  Even in his present application now before me, the applicant did not provide or advance any further evidence or argument in respect of his case which he claimed to have been denied of the opportunity to do so by the adjudicator, and at the oral hearing he confirmed he had nothing further to say to the Court.  It is also clearly factually wrong for him to claim of being tortured at the behest or in collusion of the police or law enforcement agencies when even on his own case that he had never been assaulted let alone tortured by anyone. As such I do not find any basis or merits in any of the complaints of the applicant. 

15.  As has been repeatedly emphasized by the Court of Appeal, 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 present case, the Board rejected the applicant’s claim based on its adverse finding on his credibility for the detailed analysis and reasons given in paragraphs 30 – 40 of its decision with the benefit of hearing him in evidence and in answer to questions raised of his claim, and in the absence of any error of law or procedural unfairness being clearly and properly identified by the applicant, I am unable to find any reasonably arguable basis to challenge the finding of the Board.   

17.  Furthermore, the fact is that it has been established by both the Director and the Board in their respective 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.

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.

19.  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