RAVINDER SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 2679/2018

[2022] HKCFI 1733

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2679 of 2018

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 29-year-old national of India who entered Hong Kong illegally on 31 October 2014 and surrendered to the Immigration Department on 16 April 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 former girlfriend’s family who objected to their relationship. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Sharinpur, District Hoshiarpur, Punjab, India where he met his girlfriend at school in Grade 11 when they soon started dating, but later when they were seen together by her brother who then told their parents and demanded that they end their relationship, and when the Applicant refused, her brother together with his friend then punched and kicked him, and before they left, her brother threatened next time he would kill the Applicant.

3.  After the attack, his girlfriend called the Applicant on the phone that she was not allowed by her family to see him again, and warned him that her family members were looking to beat him again to teach him a lesson.

4.  As a result, the Applicant became fearful for his safety, and on 13 September 2011 he departed India for China, and from there he later travelled to Hong Kong on 8 November 2011 where he subsequently overstayed and raised a torture claim to the Immigration Department, and on 2 January 2013 he was repatriated to India after his torture claim had been rejected.

5.  Upon returning to his home in Sharinpur, one day in January 2013 while he was in the city area, he was confronted by two friends of his former girlfriend’s brother who proceeded to punch and kick him but he managed to escape without serious injuries. Upon returning home he was advised by his parents to take shelter in his aunt’s place in the next village, but as he was still fearful of further attacks by his former girlfriend’s family, he therefore departed India again on 28 April 2013 for China, and from there he tried to enter Hong Kong as a visitor but was refused entry, and on 4 October 2013 he left China to return to India.

6.  For the next 2 years the Applicant made 3 more trips to China to try to enter Hong Kong but was refused entry on each occasion by the Immigration Department, and after his last attempt failed on 30 October 2014, he then sneaked into Hong Kong on the next day on 31 October 2014, and some 6 months later on 16 April 2015 he surrendered to the Immigration Department and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 5 September 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  While being released on recognizance pending the determination of his claim, the Applicant subsequently married a local resident in Hong Kong.            

8.  By a Notice of Decision dated 27 September 2017 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”).

9.  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 former girlfriend’s family upon his return to India as low due to the absence of or low intensity and frequency of past ill-treatment from them, that since the first incident with her brother in 2011 there had been no further threats or attack on the Applicant, while there is no reliable evidence to suggest that his alleged second attack by her brother’s friends in 2013 had anything to do with her family, that after all these years when he had stopped seeing his former girlfriend and left the country and having since married a wife in Hong Kong that it is not accepted that there would still be any adverse interest from anyone in India in him, that it was in any event a private personal dispute between him and his former girlfriend’s 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 adult to move to other part of India away from his home district in large cities such as Delhi where it would be difficult if not impossible for him to be located.

10.  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 26 July 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 23 November 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

11.  In its decision the Board found inconsistencies and implausibility in the Applicant’s evidence as to events occurred in India prior to his departure that it doubted the credibility of his claim of fear of harm from his former girlfriend’s family given his many trips in and out of his home country without any risk, that his credibility was further undermined by his failure to raise his claim upon his last arrival in Hong Kong until some 6 months later that it considered that he was not a credible witness and that he had fabricated his claim to create a basis upon which to apply for non-refoulement protection, and concluded that he does not face any real risk of any of the proscribed harm from his former girlfriend’s family or from anyone else upon his return to India that his claim for non-refoulement protection failed on all applicable grounds.    

12.  On 26 November 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 or in his supporting affirmation of the same date, nor did he put forth any proper ground for his intended challenge at the hearing of his application. 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.

13.  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.

14.  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 34 – 48 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.  

15.  Furthermore, the fact is that it has 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.                

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