HARPREET SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 516/2020

[2024] HKCFI 1977

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 516 OF 2020

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 45-year-old national of India who entered Hong Kong illegally on 20 November 2015 and surrendered to the Immigration Department on 25 November 2015 when he raised a non-refoulement claim for protection on the basis that if he returned to India he would be harmed or killed by his paternal uncle over their 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 VPO Panjgrain Kalan, Faridkot, Punjab, India. After leaving school he farmed on the farmland which he inherited from his father in his home village, but in 2002 he went to work in Kuwait and therefore leased out his farmland to his paternal uncle.

3.  In about 2006 or 2007 his uncle started to press him to transfer the farmland to his uncle, and on one occasion when he returned to his home village for holiday, his uncle again pressed him for the transfer of the farmland, and when the Applicant refused, it led to a big argument between them during which his uncle attacked him with a chopper and injured his left foot until being restrained by other villagers.

4.  Thereafter the Applicant ignored his uncle’s demand and returned to Kuwait to continue with his employment until April 2015 when he returned to India upon completing his employment in Kuwait.

5.  However, as his uncle’s demands and threats for the transfer of the farmland persisted, the Applicant on 15 September 2015 departed India for China, and from there he later sneaked into Hong Kong and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 19 July 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated the 22 August 2017 Director of Immigration (“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 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”).

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 his paternal uncle upon his return to India as low due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of his uncle to seriously harm or kill him over their land dispute, that in any event it was a private dispute between the 2 of them only 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 Delhi where it would be difficult if not impossible for his uncle to locate him.

8.  On 31 August 2017 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 16 July 2018 before the Board during which he elected not to give further evidence after adopting his evidence given earlier to the Director and contained in the hearing bundle, but did answer questions raised of his claim by the Adjudicator for the Board. On 24 September 2018, his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from his uncle over their land dispute that caused him to leave his home country to come to Hong Kong to seek protection, that even if his account of events occurred prior to his departure of Pakistan were true that there was no reliable evidence of any real intention of his uncle to seriously harm or kill him over their land dispute, and that in any event it was a private dispute between the 2 of them only without any official involvement that state or police protection would be available to the Applicant upon his return to India as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

10.  On 22 October 2018, the Applicant filed a Form 86 under HCAL 2288/2018 for leave to apply for judicial review of the Board’s decision but without putting forth any ground for his intended challenge, and before it could be heard by the Court, the Applicant on 13 January 2020 filed an affirmation requesting to withdraw his application as his problem in his home country had been resolved that he can now return to India, whereupon his application was withdrawn by the Court on 23 January 2020.

11.  However, less than 3 months later on 7 April 2020 the Applicant filed another Form 86 under these proceedings again for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation filed on the same date he explained that earlier he withdrew his leave application under the mistaken belief that his problem in India had been resolved, but after it had been withdrawn he was then told by his family that it was a mistake and that his life would still be in danger in India, and hence he asked that he be allowed to re-open his application.

12.  While I was prepared to give the Applicant the benefit of the doubt, there was however no ground for seeking relief put forth in his Form or his supporting affirmation either in his previous application or in his present one. 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.

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 fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in his claim if real 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.  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.  As a matter of fact, recently on 24 June 2024 the Applicant filed yet another affirmation requesting again to withdraw his application as he no longer has any problem returning to his home country but without providing any further corroborating details.

17.  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, I therefore refuse to grant leave and 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