MINHAS PARAMVEER SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 3250/2019

[2021] HKCFI 413

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3250 of 2019

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;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 49-year-old national of India who last arrived in Hong Kong on 30 June 2011 with permission to remain as a visitor up to 14 July 2011 when he did not depart and instead overstayed in Hong Kong, and on 22 August 2011 he surrendered to the Immigration Department and raised a torture claim on the basis that if he returned to India he would be harmed or killed by his former wife and/or her brother over some money disputes and/or by the local Sikh community for converting his religion into Christianity, and after his torture claim was rejected, he then sought non-refoulement protection on the same basis. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Visakhapatnam, Andra Pradesh, India. After leaving school he ran various business in his home district, got married and raised a family of 3 children.

3.  In 2001 his wife’s brother came to live with them in their house, during which there were frequent disputes between them as his wife’s brother often asked for money and interfered in the running of his business which subsequently led to the Applicant closing his business in end of 2004, and when he had run out of money, he was kicked out of his home by his wife who eventually divorced him in 2007, and when she and her brother demanded that he signed over his land to them, and when the Applicant refused, they threatened that they would have him killed. 

4.  Fearing for his life, the Applicant therefore fled to Delhi, and from there he later departed India for Macau and then to Hong Kong where he overstayed and subsequently converted his religion from Sikhism to Christianity, and upon his surrender to the Immigration Department, he then raised his non-refoulement claim for protection, for which he completed a Supplementary Claim Form on 29 May 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.     

5.  By a Notice of Decision dated 22 June 2018 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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 former wife or her brother or the local Sikh community upon his return to India as low due to the absence of or low intensity and frequency of past ill-treatment from them, that his former wife and her brother had already taken all his money and property that it is doubtful they would still have any adverse interest in him after all these years, that in any event these were private family disputes between them without any official involvement that state or police protection would be available to the Applicant if resorted to, that there is no evidence of any threats from the local Sikh community other than his own speculations, 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 that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas away from his home district in large cities such as Mumbai or Delhi where it would be difficult if not impossible for him to be located by anyone.

7.  On 3 July 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 7 August 2019 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 14 November 2019 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 claim of disputes with his former wife and her brother over money matters and threats from them but found that since many years have passed and the circumstances of all relevant parties have changed that it did not consider any reason for there to be any further adverse interest in him upon his return to India, and that in the absence of any evidence of any threats from the local Sikh community or any official involvement that state/police protection would be available to the Applicant if needed as well as reasonable internal relocation for him to move safely to other area away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.  

9.  However, even before the Board’s decision was delivered, the Applicant already on 31 October 2019 filed a 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 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.

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 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.     

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.  Furthermore, the Applicant on 20 November 2020 filed an affirmation requesting to close his case as he wants to go back to his home country.

15.  In the premises, and as I am not satisfied for the reasons given that there is any prospect of success in the Applicant’s intended application for judicial review, and given his latest confirmation of his wish to close his case so that he can go home, I accordingly allow his request and dismiss 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