JASPREET SINGH v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 40/2019

[2022] HKCFI 1008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 40 OF 2019

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;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 29-year-old national of India who arrived in Hong Kong on 13 January 2013 as a visitor with permission to remain up to 27 January 2013 when he did not depart and instead overstayed, and was arrested by police on 27 February 2013. 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 two local villagers due to their dispute with his father over his father’s farmland in the home village. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Guruwali, Punjab, India. After leaving school he worked as a farmer on his father’s farmland in the home village inherited from his grandfather.

3.  In 2011 two villagers SS and KS tried to purchase the land from his father, but after their offer was rejected by his father, they started to make threats against his father by firing shots outside his home and threatened that they would harm his family, and after one incident in March 2012 when the Applicant was assaulted by SS and KS and their men with baseball bats that he suffered severe back injury and had to be hospitalized, and after his discharge from hospital, his father sent him out of town to take shelter with various relatives.   

4.  However, when he later heard that SS and  KS were looking for him everywhere, the Applicant felt that it was no longer safe to remain in India, and so on 8 January 2013 he departed for Thailand, and arrived in Hong Kong on 13 January 2013 and subsequently overstayed, and after his arrest by the police, he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 7 September 2016 with legal representation from the Duty Lawyer Service (“DLS”) but failed to attend the scheduled screening interview before an immigration officer due to alleged medical reason.             

5.  By a Notice of Decision dated 17 November 2016 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”).

6.  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 SS and KS upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that his problem was a private land dispute between his father and some fellow local villagers 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 young 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 those two villagers to locate him.

7.  On 28 November 2016 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 with his lawyer from DLS on 15 November 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board and with submissions made by his lawyer on his behalf. On 4 January 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board found the Applicant’s evidence as to the land dispute between his father and the two local villagers and the subsequent threats arising therefrom vague, inconsistent and confusing that it doubted the credibility of his claimed fear of harm from them that caused him to flee his home country for Hong Kong, and that in any event in the absence of any official involvement that state/police protection would be 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 that his claim for non-refoulement protection failed on all applicable ground.    

9.  On 7 January 2019 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 and the Adjudicator reached their decisions wrongly in assessing the Applicant’s non-refoulement claim and that they were not reasonable or fair in failing to recognize that his right to life must be protected from extra-judicial killings;

(2)    That the Adjudicator failed to give the Applicant sufficient time and opportunity to arrange relevant evidence for his non-refoulement claim as well as his appeal;

(3)    That it was clearly a case of unfair attitude shown by the Director which in itself is enough to render his decision void; and

(4)    That the Director failed to consider the Applicant’s assertions that corruption and incompetency of the administration in his home country is a very serious problem of which various human rights organizations have compiled reports that stated testament and which show that the Director had failed to attain high standard of fairness required by the Wednesbury test.  

10.  These are however 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 apply to his case or how the Director or the Adjudicator had erred in their decisions, or how did they fail to apply high standard of fairness or to give the Applicant sufficient time and opportunity to provide his evidence for his claim or appeal in particular when he was legally represented by his lawyer from DLS in his appeal before the Board and when no such issue had ever been raised by him, or in what way would the right to life or extra-judicial killings be relevant to his claim which even based on his own case was a private land dispute between his family and some villagers in his home district without any official involvement or political element. 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.

11.  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.

12.  In the Applicant’s case, the fact is that it has been correctly established by both the Director and the Board in their respective decisions 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.                

13.  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.

14.  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