GURJIT SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 718/2018

[2020] HKCFI 2208

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 718 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 35-year-old national of India who arrived in Hong Kong on 9 July 2005 with permission to remain as a visitor up to 19 July 2005 when he did not depart and instead overstayed and was arrested by police on 24 February 2006.  After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to India he would be harmed or killed by a fellow villager over a land dispute, and when his torture claim was rejected, he then sought non-refoulement protection on the same basis.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Purjpoohla, District Tarn Taran, Punjab, India where his father owned a piece of agricultural land which had been rented to a villager Manga for farming.

3.  In 2004 the Applicant’s father wanted to repossess his land for his own farming, but Manga refused and instead declared to be the legal owner of the land, and when the Applicant accompanied his father to confront Manga over his claim, Manga and his men attacked the Applicant with wooden sticks that injured his legs, and threatened to kill him and his father if they persisted with their demand over the land.

4.  The Applicant then ran home to get his uncle to help, and when they returned to the scene, they found his father dead on the ground while Manga and his men had already left, and when they reported the matter to the police, they were told that since they did not witness who killed their father, no action would be taken against Manga or his men.

5.  Several months later the Applicant was arrested by police for drug trafficking which he suspected was a false charge made by Manga against him, for which he was detained for interrogation for 9 days during which he was beaten by the police who tried to force a confession from him, and was only released after his uncle had paid a bribe to the police.

6.  Upon his release the Applicant received many threatening phone calls from unknown strangers whom he suspected were Manga’s men, and as he became fearful for his life, he therefore fled to Khalra in Amritsar District to take shelter at his grandparents’ home where he stayed for 10 months without incidents, but when he heard that Manga and his men were still looking for him everywhere, he felt it was no longer safe to remain in India, and so on 9 July 2005 he departed for Hong Kong where he overstayed, and upon his subsequent arrest by the police, he raised his torture claim, and after it was rejected by the Immigration Department, he then sought non-refoulement protection, for which he completed a Supplementary Claim Form on 27 April 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.  By a Notice of Decision dated 4 July 2017 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture claim including risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“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”).

8.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real and substantial risk of him being harmed or killed by Manga or his men upon his return to India due to the low intensity and frequency of past ill-treatment from them, that Manga had already possessed his father’s land that there was no reason for him to have any further interest in the Applicant after all these years, that 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 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 adult with working experience to move to other part of India away from his home district in large cities such as Delhi or Khalra where he had stayed before without incidents and where it would be difficult if not impossible for Manga or his men to locate him.

9.  On 10 July 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 26 March 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 23 April 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.  In its decision the Board found the Applicant’s evidence of his father’s death due to land dispute with Manga and the subsequent threats against him inconsistent, conflicting and incredible that it did not accept that he was genuinely in fear of being harmed or killed by Manga upon his return to India, that in any event that after all these years it doubted that he would still be of any adverse interest to Manga, and that with reasonable internal relocation within India for the Applicant to move safely to other area away from his home district without any risk of being located by Manga that his claim for non-refoulement protection failed on all applicable grounds.    

11.  On 25 April 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely repeated his claim that his life would still be in danger in his home country, and that he just wants to stay in Hong Kong until his problem back home is solved but without putting forward any proper or valid grounds for his intended challenge.  Nor did he request any oral hearing for his application.  As such and in the absence of any proper or valid ground in support of his application, I do not find any reasonably arguable basis for his intended challenge.   

12.  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.

13.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 26 – 37 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, 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 the finding of the Board.  

14.  Furthermore, the fact 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.     

15.  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.

16.  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