BIKRAMJIT SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 399/2020

[2022] HKCFI 245

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 399 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 30-year-old national of India who entered Hong Kong illegally on 23 November 2015 and surrendered to the Immigration Department on 27 November 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 paternal uncle over a 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 Vpo Rayya, Baba Bakala, Amritsar, Punjab, India where he had inherited a piece of land from his grandfather, but which was coveted by his paternal uncle who was an influential person in the village, and in 2015 his uncle forcefully occupied the land and drove the Applicant out, and after the Applicant had reported the matter to the local police, his uncle then sent some of his men to beat the Applicant, and also made a false claim against him to the police who then arrested and detained the Applicant for several days during which he was warned not to mess with his uncle.

3.  Upon his release the Applicant made a complaint to the Senior Leader Congress against his uncle, but after another assault by the men sent by his uncle, the Applicant fled from his home village to take shelter in his aunt’s place in Gurdaspur, but as he still feared for his safety, he later departed India for China, and from there he sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 12 October 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

4.  By a Notice of Decision dated 8 November 2018 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”).

5.  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 and his men upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that having already taken over his land that there is no reason for his uncle to have any further adverse interest in the Applicant, that in any event their dispute 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 Chennai or Kolkata where it would be difficult if not impossible for his uncle to locate him.

6.  On 19 November 2018 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 16 December 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 24 February 2020 his appeal was dismissed by the Board which also confirmed the decision of the Director.

7.  In its decision the Board accepted the Applicant’s evidence of claimed fear of harm arising from a family land dispute with his uncle in his home village, but found in the absence of any evidence of official involvement that state/police protection would be available to the Applicant upon his return to India as well as reasonable internal relocation for him to move safely to other areas away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

8.  On 13 March 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 stated that he rejects the decision because it disregarded the danger and threats that he will face in 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 in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

9.  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.

10.  In the Applicant’s case, the fact is that it has been 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.     

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 30 December 2021 field an affirmation requesting to withdraw his application as his problem in his home country has been resolved and that he wants to return to India as soon as possible.

13.  In the premises, 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 his latest confirmation that his problem in his home country has been resolved and that he wants to go home as soon as possible, I refuse to grant leave 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