HARPREET SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 332/2021

[2023] HKCFI 550

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 332 of 2021

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;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 25-year-old national of India who entered Hong Kong illegally on 1 January 2019 and was arrested by police on 21 March 2019. 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 neighbours over their land dispute with his family in his home village. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Udaypur Mafi, District Pilibhit, Uttar Pradesh, India. After leaving school he worked as a farmer on his cousin’s farmland in his home village which his cousin inherited from his father but was being looked after by the Applicant’s family as his cousin was young.

3.  In early 2015 the local government planned to build a highway passing through his home village thereby raising the value of some of the adjacent farmlands including that of his cousin, which then caused serious dispute with his neighbours Jaimal, Nirvail and Subegh over the proper boundaries dividing their adjacent farmlands.

4.  One day in July 2015 while the Applicant and his cousin were working on their farmland, Jaimal and Subegh came over to quarrel with them over their boundary dispute, during which they pulled out their pistols and fired at the Applicant and his cousin, and when his cousin returned fire with his pistol, Jaimal was killed while Subegh and his cousin were also injured, but the Applicant managed to escape unharmed.

5.  After the shootout, his cousin was arrested by the police, and when the families of Jaimal and Subegh threatened to take revenge against the Applicant, he fled to New Delhi to take shelter in a relative’s home before moving on to Amritsar.

6.  One day in May 2016 while he was out in the market, the Applicant was attacked by 3 unknown men with knives and hockey sticks and suffered cuts and bruises all over his body until those men fled when the police arrived and brought him to the police station for questioning, during which the Applicant told the police that he suspected that those men were sent by the families of Jaimal and Subegh, but the police were more interested in information as to the whereabouts of his cousin whom he was told had absconded after his cousin was released on bail, and when the Applicant was unable to provide any information, he was eventually released by the police.

7.  Thereafter the Applicant quietly returned to his home village, but when he later heard that the families of Jaimal and Subegh were still looking for him everywhere, he decided that it was no longer safe to remain in India, and so he fled to New Delhi again, and from there he departed for China in November 2016, and when he later on 11 November 2016 travelled to Hong Kong but was refused entry by the Immigration Department and returned to China, and some 2 years later on 1 January 2019 he sneaked into Hong Kong, and after his subsequent arrest by the police, he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 25 September 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

8.  By a Notice of Decision dated 26 November 2019 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”).

9.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found inconsistencies and implausibility in his evidence that the credibility of his claim of fear of harm that caused him to leave his country for Hong Kong is doubtful, that even if such risk is real that the level of risk of harm from his neighbours upon his return to India was assessed as low due to the low intensity and frequency of past ill-treatment from them, that in any event it was a private land dispute between his neighbours and his family 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 the country away from his home district in large cities such as New Delhi where he had stayed before without incidents and where it would be difficult if not impossible for anyone to locate him.

10.  On 9 December 2019 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 17 April 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 23 February 2021 his appeal was dismissed by the Board which also confirmed the decision of the Director.

11.  In its decision the Board accepted the Applicant’s evidence of having been threatened and assaulted by members of the families who owned the land adjacent to his cousin’s farmland arising from a dispute over the boundary issue separating their farmlands, and as a result of a shooting incident that he fears of being harmed or killed by them upon his return to India, but found that it was a private dispute between them without any official involvement that state or police protection would be available to him as well as reasonable internal relocation for him to move safely to other part of the country without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

12.  On 11 March 2021 the Applicant filed his Form 86 for leave to apply for judicial review of the decision of the Board, and in his supporting affirmation of the same date he put forward various grounds for his intended challenge which can be summarized as follows:

(1)  Procedural unfairness in that the Board’s decision to refuse the Applicant’s appeal were unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(2)  Procedural unfairness in that the Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirements;

(3)  Procedural unfairness in that the Board failed to meet the greater care and duty owed to a self-represented claimant;

(4)  Procedural unfairness in that the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(5)  That in dismissing the Applicant’s appeal/petition the Adjudicator failed to conduct any analysis of the supporting documents or the risk of violation to the Applicant’s right to life under BOR 2; and

(6)  That the Board had significantly relied on source of news not officially recognized or were simply hearsay or outdated with the lack of credible source of information that resulted in groundless speculations in the decision.

13.  These are however all just broad and vague assertions of the Applicant containing a few key words or phrases but without any particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what source of information were unofficially recognized or outdated, or how did the Board or Adjudicator act in a procedurally unfair manner or fail to conduct proper analysis as to the Applicant’s BOR 2 Claim. 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, nor do I find any merits in his intended application 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 or properly identified by the Applicant at the hearing of his application.

14.  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.

15.  In the Applicant’s case, 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 his 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.

16.  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.

17.  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