MANPREET SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 602/2020

[2020] HKCFI 1813

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 602 of 2020

     Application for Leave to Apply for Judicial Review

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

Following:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 28-year-old national of India who entered Hong Kong illegally and was arrested by police on 24 May 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 certain land dispute.     

2.  By a Notice of Decision dated 30 October 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”).

3.  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 uncle upon his return to India as low due to the low intensity and frequency of past ill-treatment from him, that it was a private family dispute between them 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 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 some large cities where it would be difficult if not impossible for his uncle to locate him.

4.  On 9 November 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 3 December 2019 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board when he confirmed that his problem in India is now solved and that he can go home but that he just wants to spend a few more months in Hong Kong until his problem is fully resolved.

5.  Nevertheless, the Board proceeded to consider his claim, and on 4 March 2020 dismissed his appeal and also confirmed the decision of the Director. 

6.  On 14 April 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward various broad grounds for his intended challenge.

7.  However, three months later on 10 July 2020 he filed an affirmation for the withdrawal of his leave application claiming that “all his problems are now finished”, and that he wants to go back to his home country. 

8.  In the premises and given the fact that the basis of his claim no longer exists, it would be more appropriate for his application to be dismissed rather than withdrawal, and accordingly I dismiss his application for leave to apply for judicial review of the Board’s decision.

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