MANVIR SINGH v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 860/2018

[2021] HKCFI 340

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 860 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;

1.  the Application for Leave to Apply for Judicial Review be reinstated; and

2.  leave to apply for Judicial Review be refused.

Observations for the Applicant:

1.  The Applicant is a 27-year-old national of India who arrived in Hong Kong on 8 September 2014 with permission to remain as a visitor up to 17 September 2014 when he did not depart and instead overstayed and was arrested by police on 7 October 2014. After he was referred to the Immigration Department for investigation, he 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 and/or by his girlfriend’s family who were against their relationship. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised as a Sikh in Village Chamian, Tehsil Nokodar, District Jalandhar, Punjab, India. After leaving school he assisted in his family’s farming on his father’s land inherited from his grandfather.

3.  Although his paternal uncle also inherited his share of the grandfather’s land in their home village, his uncle had always coveted the land of the Applicant’s father which had caused constant conflicts between the two of them.

4.  In 2012 the Applicant started dating a Muslim girl from a wealthy family in the village, but due to their different religions and status, they kept their relationship a secret from her family.

5.  In 2014 the Applicant’s father started the process of transferring his land to the Applicant, and when the Applicant’s uncle heard about it, he turned against the Applicant when he and his men one day attacked him with wooden sticks and broke his leg that he was subsequently hospitalized.

6.  After his discharge from the hospital, the Applicant reported the matter to the local police, but when the police refused to take any action against his uncle, the Applicant suspected that they were under the influence of his uncle who was wealthy and powerful in the village, and when his uncle continued to make threats against him, the Applicant therefore fled home to take shelter at his sister’s place in another village, but when he was later attacked by some men sent by his uncle, he fled to Delhi, and from there he departed in September 2014 for Hong Kong where he subsequently overstayed, during which he heard that in addition to threats from his uncle, his girlfriend’s family had also started making threats against him after discovering of their relationship, and so upon his arrest by the police he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form  on 29 April 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.     

7.  By a Notice of Decision dated 17 February 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 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 his uncle or his girlfriend’s family upon his return to India due to the absence of or low intensity and frequency of past ill-treatment from them, that his problems with them were private personal disputes 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 young man with working experience to move to other part of India away from his home district in large cities such as New Delhi where it would be difficult if not impossible for his uncle or his girlfriend’s family to locate him.

9.  On 28 February 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 29 January 2018 before the Board during which he declined to give evidence or to answer questions put to him by the Adjudicator for the Board. On 13 April 2018 his appeal was dismissed by the Board.

10.  In its decision the Board found inconsistencies and discrepancies in the information previously provided by the Applicant to the Director but which he declined to clarify or explain at his appeal hearing that the Board found his claimed fear of harm from his uncle or his girlfriend’s family unreliable, which was further undermined by his failure to raise his claim upon his arrival in Hong Kong until after his arrest by the police, and that in any event with state/police protection available to him upon his return to India as well as reasonable internal relocation for him to move safely to other area away from his home district without any risk of being located by his uncle or his girlfriend’s family that his claim for non-refoulement protection failed on all applicable grounds.   

11.  On 17 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 take account or give proper weight to the fact that the Applicant was tortured at the behest of and in full collusion of the police and the state law enforcement agencies that the state should be rendered liable to him by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(3) that the Director failed to consider or give sufficient weight to those evidence listed in the relevant COI which supported the Applicant’s aversions that the police in India would not be able to protect;

(4) that the Director relied on relevant COI which suited his pre-conceived conclusion which was a clear case of unfair attitude which in itself is enough to render his decision void;

(5) that the Director failed to consider the fact that corruptions and incompetency of the administration in India is still a very serious problem as reported by various human rights organizations which stated testament to the applicant’s assertions;

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

(7) that the Adjudicator failed to make sufficient enquiry before finalizing the determination; and

(8) that the Adjudicator failed to give sufficient chance to the Applicant to arrange relevant evidence to his non-refoulement claim as well as his appeal.   

12.  Before his application could be dealt with by the court, the Applicant on 27 March 2019 filed an affirmation requesting to withdraw his application as he wanted to return to his home country, and accordingly on 28 March 2019 this court acceded to his request and allowed his application to be withdrawn.

13.  However, more than one year later on 9 July 2020 the Applicant issued a summons for permission to “re-open” his leave application because he was told by his family that his problems back home are still there that it would be dangerous for him to return to India. Given the fact that the substance or merits of his application have never been dealt with, I am prepared to allow the Applicant to proceed with his application, for which he confirmed at the hearing that he had no further representation to be made regarding his application other than what he had already stated in his Form 86 and affirmation.   

14.  However, those grounds as proposed above for his intended challenge are 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 was state acquiescence relevant to his claim, or how did the Director or the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or how did they fail to make proper or sufficient enquiries or apply high standards of fairness in their determination of his claim, or how did the Adjudicator fail to give him sufficient opportunity to provide the relevant evidence or information in support of his claim or his appeal. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge.

15.  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.

16.  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 19 – 24 of its decision after he failed to clarify or explain those inconsistencies and discrepancies in his claim as identified in the decision despite being invited and advised by the Adjudicator for him to do so. As such 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.  

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