JASPREET SINGH v. DIRECTOR OF IMMIGRATION

HCAL 2213/2018

[2020] HKCFI 179

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 2213 of 2018

 Application for Leave to Apply for Judicial Review

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

Following:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 30-year-old national of India who arrived in Hong Kong on 22 October 2010, but when he was refused entry by the Immigration Department, he raised a torture claim on the basis that if he returned to India he would be harmed or killed in revenge by the man whose brother was killed by the Applicant’s father, and when his torture claim was rejected, he sought non-refoulement protection on the same basis. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village-Amir Nagar, Sangrur District, Punjab, India. After leaving school he assisted his father in farming in their home village.

3.  In 1981 and well before the Applicant was born, his father killed a man in a fight and for which his father was sent to prison for several years. 

4.  Kuldip was one of the younger brothers of the man whom the Applicant’s father killed when he was very small, and when Kuldip later became a wealthy landowner in the neighbouring village with political connections, he swore to take revenge against the Applicant’s father for his brother’s death.

5.  To avoid that threat the Applicant’s father fled from their home to hide from Kuldip who then turned his attention to the Applicant. One day in October 2009 the Applicant was ambushed by Kuldip and his men in the village when they assaulted him with knives and wooden sticks until other villagers intervened. As a result, the Applicant was taken to the hospital for multiple stab wounds and was hospitalized for 10 days. Upon his discharge from the hospital, the Applicant however did not report the incident to the police as he suspected that they were under the influence of Kuldip.

6.  Several days later while he was on the way to catch a bus, the Applicant was again ambushed by Kuldip and his men who proceeded to attack him with bamboo sticks until he lost consciousness and fell to the ground. Later he found himself in a hospital where he was treated for cuts and bruises all over his body.

7.  Upon his discharge from the hospital, the Applicant again did not make any report to the police, but he fled home to take shelter in his uncle’s place for one month before moving to Machhiwara to stay with his aunt. One day in December 2009 while he was traveling on a motor cycle, he found himself being chased by Kuldip on a vehicle which tried to knock him over, but he managed to make his escape and fled from the scene.

8.  After the incident the Applicant fled to Kolkata to hide in his friend’s place, but when he later saw Kuldip in the neighbourhood, he then fled to New Delhi where he stayed without incidents, but as he did not know anyone in New Delhi and as he feared that he would eventually be located by Kuldip again, he decided to save his life by departing India for Hong Kong on 22 October 2010, and when he was refused entry, he raised his torture claim which was later rejected by the Immigration Department on 23 September 2011.

9.  The Applicant however did not appeal against that decision, and instead he failed to report on his recognizance and disappeared until 25 February 2013 when he was arrested by police. After he was subsequently transferred to the Castle Peak Bay Immigration Centre, he later raised his non-refoulement claim for protection on the same basis as before.

10.  While being released on 30 May 2013 on recognizance pending determination of his non‑refoulement claim, during the next 4 years the Applicant had been arrested at least 12 times for various criminal offences including thefts, criminal damage, common assault, and assaulting a police officer, and for which he had served total imprisonments of more than 23 months.     

11.  Meanwhile, in the process of his non-refoulement claim before the Immigration Department, the Applicant completed a Supplementary Claim Form (“SCF”) on 17 July 2017 without legal representation from the Duty Lawyer Service (“DLS”) as his assigned lawyer for reason not clear to me subsequently refused to represent him, and when he also failed to complete his screening interview before an immigration officer allegedly due to illness, he was instead served with a list of questions for his answer in writing but which he never returned to the Immigration Department. His claim was therefore assessed based on the information and materials provided in the screening interviews for his previous torture claim as well as his SCF submitted for his non-refoulement claim.    

12.  By a Notice of Decision dated 25 September 2017 the Director of Immigration (“The Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than his torture claim under Part VIIC of the Immigration Ordinance, Cap. 115 (“Torture Claim”), but include 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”).

13.  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 Kuldip or his men upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that in the absence of 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 Mumbai or Delhi where it would be difficult if not impossible for Kuldip to locate him.

14.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“The Board”) against the Director’s decision, but he failed to attend the oral hearing scheduled on 12 April 2018 before the Board, for which he later by a letter dated 23 April 2018 explained that he was sick on that day and produced some medical receipts for an appointment at the Queen Elizabeth Hospital at a later date but which the Board found unrelated to his absence for the oral hearing on 12 April 2018, and decided not to reschedule another oral hearing and instead proceeded to deal with his appeal on papers and in his absence. On 30 April 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

15.  In its decision the Board found the Applicant’s evidence as to his claim of fear of being harmed or killed by Kuldip unreliable and incredible, and that in any event with the option of reasonable internal relocation within India available that it would not be unduly harsh for the Applicant as an able-bodied young man with working experience to relocate to other parts of India to negate any perceived risk of ill-treatment from Kuldip upon his return to India that his claim for non-refoulement protection failed on all applicable grounds.   

16.  On 11 October 2018 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 was not satisfied with the Board’s decision regarding his non-refoulement claim but without providing any ground or reason why he was so, nor did he request for any oral hearing for his application.

17.  However, before his application could be considered and dealt with by the Court, the Applicant by a letter dated 31 October 2019 to the Court requested to withdraw his application as he wanted to return to his home country as soon as possible. His request was granted by this Court on 14 November 2019, his application was accordingly withdrawn, and the Applicant was so informed on the same day.

18.  Three weeks later on 3 December 2019, the Applicant wrote to request to re-open his application as his life would still be in danger and he no longer wants to return to India. Given the fact that his leave application was withdrawn at his request instead of being dismissed on merits, and in order to save time I exercise my discretion to allow the Applicant’s request, and given the nature of the claim and the history of the proceedings as noted above, and in the absence of any further or additional information or submissions from the Applicant, I propose to consider the merits of his intended application for judicial review on papers and in his absence. 

19.  Firstly, as already noted above, the Applicant has not put forward any reasonably arguable ground for his intended challenge of the finding or decision of the Board regarding his non-refoulement claim, and as it 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.

20.  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. 

21.  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.

22.  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