MANJIT SINGH AND OTHERS v. TORTURE CLAIMS APPEAL BOARD

HCAL 1548/2018

[2021] HKCFI 2168

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1548 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 1st and 2nd Applicants in open court for their own and on behalf of the 3rd and 4th Applicants;

Leave to apply for judicial review refused.

Observations for the Applicants:

1.  The 1^st and 2^nd Applicants are nationals of India who had separately overstayed in Hong Kong in 2009, and upon their subsequent marriage in Hong Kong they sought non-refoulement protection on the basis that if they returned to India they would be harmed or killed by 1^st Applicant’s uncle over a land dispute in his home village, and upon the birth of their daughters, the 3^rd and 4^th Applicants, they also sought non-refoulement protection for each of them on the same basis, and with all their claims agreed to be assessed and determined jointly as a family.

2.  The 1^st Applicant (“A1”) was born and raised in Village Dhaniwal, District Gurdaspur, Punjab, India. After leaving school he assisted his father in farming on his father’s land inherited from his grandfather, but his paternal uncle disputed his father’s title in the land which had led to frequent conflicts between the two families, and after one incident in 2008 when A1 was assaulted by his uncle and sons over their dispute regarding the land, A1 became fearful for his life and fled to Amritsar to take shelter in a relative’s place, and on 11 February 2009 he departed India and arrived in Hong Kong on 12 February 2009 with permission to remain as a visitor up to 26 February 2009 when he did not depart and instead overstayed, and was subsequently arrested by police on 5 March 2009.

3.  After he was referred to the Immigration Department for investigation, A1 on 7 March 2009 raised a torture claim on the basis that if he returned to India he would be harmed or killed by his uncle and sons over the land dispute, whereupon he was released on recognizance pending determination of his torture claim,

4.  Meanwhile the 2^nd Applicant (“A2”), who was born and raised in Amritsar, India, first came to Hong Kong on 14 February 2007 to work as a foreign domestic helper, and in 2009 she met A1 while he was on recognizance pending determination of his torture claim and with whom she soon formed a relationship, and when her then employment contract was prematurely terminated on 1 June 2009, she did not depart and instead overstayed in Hong Kong and married A1 on 26 June 2009, and on 28 September 2009 she surrendered to the Immigration Department and raised a torture claim on the same basis that if she returned to India she would be harmed or killed by A1’s uncle and sons being the wife of A1 over their land dispute, and was subsequently also released on recognizance pending determination of her torture claim.

5.  On 25 October 2010 A2 gave birth to the 3^rd Applicant (“A3”) in Hong Kong, and on 25 February 2011 she raised a torture claim for A3 on the same basis as her own claim, which were then assessed together with A1’s claim as they were all premised on the same basis. On 21 September 2012 their torture claims were rejected by the Director of Immigration (“Director”), of which they did not bring any appeal to the Torture Claims Appeal Board (“Board”).   

6.  On 11 June 2013 A2 gave birth to 4^th Applicant (“A4”) in Hong Kong, and on 6 September 2013 A1 raised a non-refoulement claim for himself and his entire family on the same basis, for which he completed a Supplementary Claim Form (“SCF”) for himself, A2 and A3 on 12 March 2016, and a Non-refoulement Claim Form (“NCF”) for A4 on 8 April 2016, and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

7.  By a Notice of Decision dated 21 July 2017 the Director rejected the claims of A1, A2 and A3 on all the remaining applicable grounds other than torture risk including risk of their 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”), and by the same decision the claim of A4 was also rejected on all the applicable grounds including her torture risk under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”).

8.  In his decision the Director took into account of all the relevant circumstances of the Applicants’ claim and assessed the level of risk of harm from A1’s uncle and sons upon their return to India as low due to the absence or low intensity and frequency of past ill-treatment from them, that nothing had happened to A1’s parents and siblings from his uncle since A1’s departure from India that there is no suggestion of any risk from his uncle or sons over the land dispute, that in any event it was a private family dispute between A1’s parents and his uncle without any official involvement that state or police protection would be available to the Applicants 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 A1 and A2 as able-bodied adults with working experience to move with their daughters to other part of India away from A1’s home district to large cities such as Amritsar where A2 used to live and that A1 had stayed there before without incidents and without any risk of being located by A1’s uncle or sons.

9.  The Applicants then lodged an appeal to the Board against this decision of the Director, and for which they attended an oral hearing on 27 April 2018 before the Board during which both A1 and A2 gave evidence and answered questions put to them by the Adjudicator for the Board, and that they also added 2 further bases for their claims of fear of harm from A2’s family who were unhappy over their marriage in Hong Kong, and of discriminations against their daughters as they were born in Hong Kong. On 5 July 2018 their appeal was dismissed by the Board which also confirmed the decision of the Director.

10.  In its decision the Board found inconsistencies and implausibility in A1’s evidence that it had serious doubt over his claimed fear of harm from his uncle arising from the land dispute when it is plain that the land is still in his father’s name but no harm has happened to his father or family all these years since his departure of India that it considered that A1 is not a credible witness and rejected his claim of having been threatened or assaulted by his uncle or cousins and that he had fabricated his claim so as to create a basis upon which he and his family could apply for non-refoulement, while his claim of fear of harm from A2’s family over their marriage is unsupported by any credible evidence and in view of A2’s own evidence that she does not fear any harm from her own family over their marriage, nor was there any evidence or basis for there to be any fear of risk or discriminations to their daughters under any of the Proscribed Harm if refouled to India arising from their birth in Hong Kong as there is no dispute even from A1 or A2 that they would be eligible to Indian citizenship by descent as well as all their rights as Indian citizens including education that the claims of all the Applicants for non-refoulement protection failed on all the applicable grounds.    

11.  On 6 August 2018 the Applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in their Form, and in A1’s supporting affirmation of the same date he just repeated their claim that they cannot return to their home country as their lives there would still be in danger but without putting forward any proper ground for their intended challenge, nor were they able to do so at the hearing of their application. As such and in the absence of any error of law or irrationality or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis for their intended challenge.

12.  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.

13.  In the Applicants’ case, the Board rejected their claim essentially on its adverse finding on A1’s credibility as to his claimed fear of harm from his uncle arising from land dispute between the 2 families for the thorough and detailed analysis and reasoning set out in paragraphs 53 – 62 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and given A2’s subsequent concession of no real fear of any harm from her own family over her marriage to A1, and in the absence of any reasonably arguable basis for any fear of risk of harm to their daughters or of any error of law or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis to challenge the findings of the Board.  

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

15.  I am of course mindful of the fact that A3 and A4, being minors now aged at 10 and 8 respectively, were not legally represented in these proceedings as required under Order 80 Rule 2 of the Rules of the High Court, and that it would be necessary to separately consider and examine whether their claims had been properly considered and determined by the Board in a manner sufficient to meet the high standards of fairness in proceedings of this nature, and to see whether there are matters that may support potential minor-specific non-refoulement bases which might not have been properly advanced to the Board due to lack of legal representation in their appeal before the Board, as has been held to be the proper approach by the Court of Appeal in Fabio Arlyn Timogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2020] HKCA 971, in that claims of minor children even if based on the same set of primary facts are separate from the claims of their parents and are required to be considered as such having regard to their specific or personal circumstances, and that ill-treatment which may not reach the level of persecution in the case of an adult may do so in the case of a child.

16.  As noted above, the claims of A3 and A4 were mainly premised on their parents’ claims, of which the Board after considering the evidence of their father disbelieved him and rejected that there were any threats or ill-treatment ever inflicted by his uncle or cousins on him or anyone of his family over any land dispute, while their mother having conceded in her own evidence of no fear of her own family whatsoever that the basis of her claim was found by the Board to have simply just fallen away, whereas the remaining basis of any claim which might be specific to A3 and A4 had also been properly identified and analyzed by the Board (see [68] – [73] of the decision) and accepted by their parents at the hearing that they would be entitled to all their rights as Indian citizens if refouled to India without any risk of any sort arising from their being born in Hong Kong. Accordingly the Board had properly and specifically considered all the cases made by their parents in support of the claims of A3 and A4 individually and rejected each of them as they were advanced.

17.  Furthermore, given that A3 and A4 were then only 7 and 4 years old respectively when the Board heard their appeal, and as they have never been to India, this is not a case where either of them could have given any evidence in relation to any risk that their parents had asserted that they may face in India, nor can I see any material that may give rise to any concern that there may be non-refoulement grounds that relate specifically to either of them but had not been advanced to the Board or considered by it due to lack of legal representation for them before the Board.     

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 Applicants’ claim, and as such I do not find any arguable merits in their intended judicial review including those of A3 and A4. I will therefore treat the absence of legal representation for A3 and A4 in these proceedings as a mere irregularity as it would not serve any useful purpose for them to be so represented given the lack of merits in their intended application.   

19.  For these reasons I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, and I accordingly refuse their 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