GILL FAKIR SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 2040/2018

[2021] HKCFI 1968

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2040 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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 26-year-old national of India who entered Hong Kong illegally on 1 August 2016 and surrendered to the Immigration Department on 5 August 2016 when he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his uncle over certain land dispute. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Thethar Kalan, Ferozepur, Punjab, India. After leaving school he worked as a farmer, and in January 2016 his grandfather indicated his intention to transfer some of his land in the home village to the Applicant over the objection of his paternal uncle who then came to the Applicant to demand that he should refuse the land which then led to an argument between them during which the Applicant was pushed by his uncle when he lost his balance, fell and hit his head against the floor which required medical treatment in a clinic.

3.  After the incident the Applicant became fearful for his life and fled home to take shelter in his aunt’s place before departing India for Hong Kong on 28 January 2016, but was refused entry by the Hong Kong Immigration Department and returned to India on the same day.

4.  However, as he was still fearful for his life, he therefore departed India again on 18 July 2016 transited in Hong Kong for Shenzhen, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 7 May 2017 and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

5.  By a Notice of Decision dated 8 June 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”).

6.  In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his uncle upon his return to India as low due to the absence of or low intensity and frequency of past ill-treatment from him, that there is no evidence of any real threats from his uncle against him, that in any event it was a private family dispute over land 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”) shows 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 young adult with working experience to move to other part of India away from his home district in large cities such as Mumbai or Kolkata where it would be difficult if not impossible for his uncle to locate him.

7.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended 2 oral hearings on 5 and 18 of July 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 6 August 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board accepted the Applicant’s evidence of an argument between him and his uncle on one occasion over some land issue but found even on the facts of his own case of no evidence of any threats or ill-treatments from his uncle other than that pushing incident in the middle of an argument in January 2016 which was regarded more as an accident, or any real risk of harm from his uncle or anyone upon his return to India that his claim for non-refoulement protection failed on all applicable grounds.   

9.  On 26 September 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 request any oral hearing for his application.

10.  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.

11.  In the Applicant’s case, the Board rejected his claim essentially on its finding of no evidence of any real threats or ill-treatment ever inflicted by his uncle under any of the applicable grounds for the thorough and detailed analysis and reasoning set out in paragraphs 38 – 51 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 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 to challenge the finding of the Board.  

12.  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 is a localized one and that it is not unreasonable or unsafe for him to relocate to other parts 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.     

13.  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.

14.  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