GATODA AMRIK SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 697/2018

[2020] HKCFI 2207

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 697 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 32-year-old national of India who arrived in Hong Kong on 12 December 2013, but when he was refused entry by the Immigration Department, 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 and/or by his friend’s uncle for assisting his friend in a land dispute.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Barnala City, Punjab, India.  After leaving school he worked as a driver of private vehicles before becoming a taxi driver.

3.  In 2008 he started dating his girlfriend who lived in the same neighbourhood. However, when their relationship was discovered by her family, her father who was a retired government servant with political connections objected to their relationship and demanded that he stopped seeing his daughter.

4.  Despite the objection, the Applicant still continued to meet his girlfriend, but one day when they were in a restaurant in Barnala City, her father and brother together with some men appeared and proceeded to attack the Applicant with baseball bats and hockey sticks that he sustained an open head wound and bruises all over his body.

5.  After the Applicant received medical treatments in a local clinic, he reported the attack to the local police who however treated the matter as a private dispute and refused to take his report seriously.

6.  Thereafter the Applicant continued to maintain his relationship with his girlfriend, but one day in mid-2012 while he was on his way to work, he was ambushed by his girlfriend’s brother with other men who attacked him with bamboo sticks but he managed to escape from the scene and ran away.

7.  After the attack he took shelter in his friend’s home in Bagha Purana City where he stayed for several months.  One day he accompanied his friend to meet with his friend’s uncle in a village committee over a land dispute between them, during which a quarrel broke out between his friend and his uncle which turned into a scuffle when the committee called off the meeting and everybody left.

8.  Afterwards his friend started to receiving phone calls from his uncle who threatened to kill him and the Applicant, and when the Applicant later ran into his girlfriend’s brother and his friends who gave chase after him, and although he was able to make his escape and ran back to his friend’s home, the Applicant felt that it was no longer safe to remain in India, and so in mid-November 2013 he departed for Bangkok and then to Macau before coming to Hong Kong on 12 December 2013, and when he was refused entry he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 30 July 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

9.  By a Notice of Decision dated 15 October 2015 the Director of Immigration (“the 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 former girlfriend’s family or his friend’s uncle 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 evidence of any real intention on the part of his former girlfriend’s family to harm or kill him other than to stop him from seeing her and that after all these years it is doubtful that they would still have any adverse interest in him, while there is absolutely no evidence of any threats from his friend’s uncle other than his own speculation, that in any event there were private personal disputes 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 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 2.9 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 where it would be difficult if not impossible for his perceived enemies to locate him.

11.  By a Notice of Further Decision dated 7 December 2016 the Director again rejected the Applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

12.  By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 28 October 2015, and for which he attended an oral hearing on 15 March 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 20 April 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

13.  In its decision the Board accepted that whatever risk of harm which the Applicant may have from his former girlfriend’s family or his friend’s uncle over their personal disputes would be reduced or negated by the availability of state or police protection to the Applicant as well as reasonable internal relocation within India for him to move safely to other area away from his home district without any risk of being located by his perceived enemies that his claim for non-refoulement protection failed under all applicable grounds.  

14.  On 23 April 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 repeated his claim that he does not want to go back to his home country as his life would still be in danger but without putting forward any proper or valid ground for his intended challenge.  Nor did he request any oral hearing for his application.  As such I do not find any reasonably arguable basis for his intended challenge.

15.  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.

16.  In the Applicant’s case, 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 his 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.   

17.  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.

18.  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