BALJEET SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 23/2020

[2021] HKCFI 3628

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 23 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 (counsel for) 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 38-year-old national of India who entered Hong Kong illegally on 9 October 2015 and surrendered to the Immigration Department on 15 October 2015 when he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his two cousins over a family land dispute in his home district.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Kotli Shah Doula, Teh R S Pura, Jammu, India.  After leaving school he assisted his mother in farming on the farmland inherited from his father upon his death in 1994, but his uncle was greedy in trying to take the farmland from them, and after his uncle passed away in 2005, his sons continued to make threats against the Applicant over the land, and in one incident they even attacked him with a knife that his right arm was injured and required medical treatment in the local hospital but of which the Applicant did not make any report to the police, but as their threats and harassment persisted that on 1 October 2015 the Applicant departed India for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 25 May 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

3.  By a Notice of Decision dated 30 June 2017 the 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”).

4.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no reasonable likelihood that the perceived risk of harm from his cousins upon his return to India due to the low intensity and frequency of past ill-treatment from them, that apart from some verbal threats they had since 2005 not taken any further action against the Applicant all these years up to 2015 when he departed India, that in any event it was a private family land 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 adult with working experience to move to other part of India away from his home district in large cities such as Delhi where it would be difficult if not impossible for his cousins to locate him.

5.  On 10 July 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 9 September 2019 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board.  On 27 December 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

6.  In its decision the Board found the Applicant’s claimed fear of being harmed or killed by his cousins over his family’s farmland unpersuasive and unconvincing given his own admission that his mother is the legal owner but had never received any threats from his uncle or cousins all these years in the village, nor was there any further attack made against the Applicant for some 10 years after his uncle’s death in 2005 up to 2015 when the Applicant left his country that it was not accepted that he had any well-found fear of being harmed or killed by his cousins over his mother’s land when he departed India or that there is any real risk that he would face any of the proscribed forms of harm upon his return to India that his claim for non-refoulement protection failed on all applicable grounds.      

7.  On 2 January 2020 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 as before that it is still not safe for him to go back to 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 its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge. 

8.  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.

9.  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 34 – 50 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 findings of the Board.  

10.  The fact is that it has been established by the Director in its decision that the risk of harm in the Applicant’s claim if true 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.     

11.  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.

12.  Furthermore, the Applicant recently on 1 November 2021 filed an affirmation to request to withdraw his application as he wants to return to his home country where he no longer has any problem and that it is safe for him to do so.

13.  In the premises, and as I am for the reasons given not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of the Applicant’s latest confirmation that it would be safe for him to return to his home country, I accede to his request 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