SUDHIR SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 879/2021

[2024] HKCFI 1970

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 879 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 the Applicant in open court;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 40-year-old national of India who entered Hong Kong illegally on 1 November 2019 and was arrested by police on 5 November 2019. 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 paternal uncle over their land dispute in their home village. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Lalouchhi, District Patiala, Punjab, India. After leaving school he farmed on the farmland which he inherited from his father in his home village.

3.  In 2018 his paternal uncle who coveted his land started to demand for a share of his land, and when the Applicant refused, his uncle then made threats against him, and in 2019 launched a court case to dispute the Applicant’s entitlement to the land, but which the court subsequently ruled in favor of the Applicant upon his production of the land’s title deeds.

4.  Thereafter his uncle intensified his threats against the Applicant, and after being attacked by men sent by his uncle, and when the local police were unable to help, the Applicant became fearful for his life and fled from his home village to Uttar Pradesh to take shelter in his aunt’s place, and on 26 October 2019 he 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 15 May 2020 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 8 July 2020 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”).

6.  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 uncle and followers 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 uncle to seriously harm or kill him other than to press him to transfer the land to him, that in any event it was a private land dispute between him and his uncle 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 adult with working experience to move to other areas of the country away from his home district in large cities such as Delhi and Mumbai where it would be difficult if not impossible for his uncle to locate him.

7.  On 20 July 2020, the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 23 March 2021 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 6 May 2021, his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision the Board found material inconsistencies discrepancies and exaggerations in the Applicant’s evidence and without supporting documents which he conceded would be readily available that it doubted the credibility of his claim of fear of harm from his uncle over their land dispute which caused him to leave his country to come to Hong Kong to seek protection, and concluded his such claim of land dispute with his uncle as completely untrue and that that he had failed to establish that he will face any real risk of harm as claimed from his uncle or anyone else upon his return to India that his claim for non-refoulement protection failed on all applicable grounds.

9.  On 16 June 2021, the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation he put forward various grounds for his intended challenge, of which he confirmed at the hearing as follows:

(1)  That the Adjudicator did not give him sufficient time to properly present his case to the Board;

(2)  That the interpreter did not give him sufficient time to give his evidence and failed to properly and fully interpret his evidence to the Board;

(3)  That the Adjudicator unreasonably assessed that he can relocate to other areas in India but which is impossible for him to do so; and

(4)  That the Adjudicator wrongly assessed that state protection would be available to him as the Indian authority is his real enemy.

10.  These are however all just bare and vague assertions of the Applicant without any relevant or necessary details or particulars or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way did the Adjudicator fail to give him sufficient time to present his case or that the interpreter fail to assist him in the interpretation of his evidence, or how did the Adjudicator err in the assessment of state protection or internal relocation alternative being available to the Applicant in his home country when on the factual basis of even his own case that his claim was just a private land dispute between him and his uncle in his home village without any official involvement at all. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant either in his affirmation or at the hearing of his application, I do not find any of them reasonably arguable for his intended challenge.

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 18 – 45 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.  Furthermore, 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 even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, a decision also agreed and 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.  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.

15.  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