GURBHAL SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 2064/2019

[2024] HKCFI 3469

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2064 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;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 30-year-old national of India who entered Hong Kong illegally on 15 August 2016 and was arrested by police on the same day. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim for protection on the basis that if he returned to India he would be harmed or killed by his 2 uncles over their land dispute. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Pandori Ran Singh, Tarn Taran, Punjab, India. After leaving school he assisted his father in farming on his father’s farmland which his father inherited from his grandfather.

3.  One night in 2014, his 2 paternal uncles who also inherited their shares of his grandfather’s estate came to the Applicant’s home to speak to his father, during which they broke into a heated argument over the division of the grandfather’s estate including his father’s farmland, and thereafter his uncles left angrily.

4.  A few weeks later his uncles together with some men came onto his father’s farmland and started occupying it, and when the Applicant and his father arrived to stop them, they were attacked by his uncles and their men and were driven away.

5.  Thereafter his father made a complaint to the local police, but was told that it was a private land dispute within the family that the police would not interfere.

6.  As a result his father lost the land and his living, and eventually passed away in 2015, whereupon his uncles warned the Applicant not to try regaining his father’s land or else they would kill him.

7.  One night in late 2015 while he was riding his motorcycle on his way home, the Applicant was followed by a stranger who then suddenly tried to hit him with his vehicle from behind but the Applicant managed to make his escape unharmed and fled home.

8.  As he suspected that the men was sent by his uncles to kill him, the Applicant became fearful for his life and on 8 August 2016 departed India for China, and from there he later sneaked into Hong Kong, and upon 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 18 July 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

9.  By a Notice of Decision dated 14 September 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”).

10.  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 uncles upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of his uncles to seriously harm or kill him or of any evidence that the stranger was sent by them to kill the Applicant other than his own suspicion and speculation, that in any event it was a private land dispute between him and his uncles only 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 areas of the country away from his home district in large cities such as Delhi or Mumbai where it would be difficult if not impossible for his uncles to locate him.

11.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 3 April 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 9 May 2019, his appeal was dismissed by the Board which also confirmed the Director’s decision.

12.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from his paternal uncles that caused him to leave his country to come to Hong Kong to seek protection, that even if his claimed risk were real that it arose from some private land dispute between his father and his uncles only without any official involvement that state or police protection would be available to the Applicant upon his return to India as well as reasonable internal relocation alternatives for him to move safely to other areas of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

13.  On 19 July 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward various grounds for his intended challenge, of which he confirmed at the hearing as follows:

(1) That he was given the hearing bundle for his appeal before the Board just a few weeks before his appeal hearing with the majority of the documents in English thereby giving him insufficient time to prepare for his appeal due to his limited skills in English and being unrepresented which is procedurally unfair to the Applicant;

(2) That the Adjudicator had made findings on presumptions and had not determined his case properly based on the Applicant’s own personal circumstances which rendered the process procedurally unfair and unlawful.

14.  For his complaint under Ground (1), the Applicant did not produce any documentary evidence such as the envelope or covering letter that accompanied the hearing bundle to corroborate his assertion that it was provided to him a few weeks before his appeal hearing, that in any event a few weeks prior to the hearing does not in my view justify any criticism from the Applicant, while most of the documents such as his NCF and record of his screening interview as well as the Director’s decision had in fact earlier already been provided to him when he was still legally represented by lawyer from DLS, and that he never raised any such issue to the Board during his appeal hearing when he was able to make full and proper representation of his claim to the Board without any problem and with the assistance of an interpreter. In the circumstances I do not find any merits in this complaint of the Applicant.

15.  As for his complaint of Ground (2), it is just some bare and vague assertion of the Applicant without any necessary or relevant details or particulars or elaboration as to what findings by the Adjudicator were made on presumptions without taking into account of the Applicant’s personal circumstances, nor was the Applicant able to do so at the hearing of his application. As such I do not find this complaint reasonably arguable for his intended challenge either.

16.  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.

17.  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 his claim if real 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.

18.  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.

19.  For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his 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