BALKAR SINGH v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 1009/2021

[2023] HKCFI 277

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1009 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 (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 42-year-old national of India who last arrived in Hong Kong on 9 December 2003 as a visitor with permission to remain as extended up to 6 July 2004 when he did not depart and instead overstayed, and was arrested by police more than 3 years later on 14 March 2007. After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to India he would be harmed or killed by his cousin over a land dispute between their 2 families and/or by the Indian authorities over a charge that he was responsible for his uncle’s death during a fight over their land dispute, and after his torture claim was rejected, he then 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 Mallah Kaug, Khadur Sahib, Amritsar, Punjab, India. After leaving school he assisted his father in farming on a farmland in his home village which his father inherited from his grandfather, but which had been the subject of dispute and court actions for years between his father and his uncle over its proper distribution from his grandfather’s estate.

3.  One day in July 2002 while he and his father were working on the farmland, his uncle and cousin again came onto the land to argue with his father over their inheritance dispute, during which his uncle attacked his father with a sword, and when the Applicant tried to intervene, his uncle fell and hit his head on the ground and subsequently died from the injuries.

4.  As a result, the Applicant and his father were arrested by police for the investigation over his uncle’s death, and when they were subsequently released on bail, his cousin was furious and later filed some false charges against the Applicant as a terrorist to the police, and also swore to kill him in revenge.

5.  Fearing for his safety, the Applicant therefore fled from his home village to hide in a relative’s home in Allowal, and in mid-November 2002 he departed India for China, and from there he later travelled to Hong Kong where he overstayed, and upon his subsequent arrest by police more than 3 years later, he raised his torture claim, and after it was rejected by the Immigration Department, he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 2 February 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 28 March 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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”).

7.  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 cousin and/or the Indian authorities upon his return to India as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no reliable evidence of any adverse interest of the Indian authorities or police in the Applicant over his uncle’s death and given the fact that he was able to leave the country without any problem, that if indeed the Applicant was being pursued by the Indian police for investigation and/or prosecution over his involvement and liability in his uncle’s death that he would be entitled to proper legal representation in his defense under the current legal and judicial system in India and for which he would not be given non-refouleemnt protection in Hong Kong, that in any event the land dispute between his family and his uncle’s family was a private matter within their families 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 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 the country away from his home district in large cities such as Delhi where it would be difficult if not impossible for his cousin to locate him.

8.  On 11 April 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended 2 oral hearings on 11 November 2020 and 11 February 2021 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 14 May 2021 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board found significant inconsistencies and discrepancies in the Applicant’s evidence in relevant and material respects which raised very clear concerns about the credibility and truthfulness of elements of his claim, which was further undermined by his failure to raise his claim upon his first arrival in Hong Kong until his arrest by the police more than 3 years later that it rejected his claims of any threats from his cousin or any pursuit of him by the police or authorities arising from his claimed land dispute within the family that caused him to flee his home country for Hong Kong, and concluded that he does not face any real risk of any form of proscribed harm upon his return to India that his claim for non-refoulement protection failed on all applicable grounds.

10.  On 19 July 2021 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, in which he stated that the Director and the Adjudicator reached their decisions wrongly in assessing his non-refoulement claim in that they were not fair or reasonable as required by the Wednesbury test, and that his right to life must be protected by the criminal law from extra-judicial killings that he may face if deported back to his home country but without providing any details or particulars or elaboration as to how they were so, nor did he explain how on the factual basis of his case would he face the risk of extra-judicial killings. As such I do not find any of his complaints reasonably arguable for his intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, nor do I find any merits in his intended application.

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 Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 96 – 105 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law 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 to challenge the finding of the Board.

13.  The fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim if true is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

14.  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.

15.  Furthermore, the Applicant recently filed an affirmation on 5 September 2022 requesting to withdraw his application as it is now safe for him to return to his home country.

16.  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 given his latest confirmation that it is now safe for him to return to his home country, I 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