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HCAL 2139/2018
[2022] HKCFI 2497
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2139 of 2018
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Amrit Pal Singh |
Applicant |
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and
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Torture Claims Appeal Board
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Putative Respondent |
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and
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)
Following:
Order by Deputy High Court Judge Bruno Chan:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
1. The Applicant is a 36-year-old national of India who arrived in Hong Kong on 22 March 2014 as a visitor with permission to remain up to 5 April 2014 when he did not depart and instead overstayed, and more than 2 years later on 29 August 2016 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his cousin over a land dispute in his home village. He was subsequently released on recognizance pending determination of his claim.
2. The Applicant was born and raised in Fatehgarh Churian, Gurdaspur, Punjab of India where his father inherited some land from his grandfather and which his father had asked his uncle and son to take care for him.
3. After leaving school the Applicant ran his own retail business in his home district, but in 2014 he closed it down and told his father that he would like to farm on his father’s farmland, to which his father agreed and told him to resume possession of the land from his uncle.
4. However, when he found that his cousin had occupied the land and refused to vacate it, the Applicant made a complaint to the local police. A few days later his cousin and his followers confronted the Applicant over his complaint to the police, and proceeded to assault him but the Applicant managed to make his escape without harm.
5. One night in February 2014 while he was on his way home, the Applicant was ambushed by his cousin and his followers during which he was stabbed on his back and lost consciousness, and was later brought to the hospital for medical treatments.
6. After his discharge form hospital, the Applicant became fearful for his life, and so he fled to Delhi, and from there he departed India on 21 March 2014 for Macau and then to Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 26 February 2018 and attended screening interview before the Immigration Department with legal representation.
7. By a Notice of Decision dated 12 March 2018 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”).
8. 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 cousin and followers upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that there was no evidence of any real intention of his cousin to seriously harm or kill him, that in any event it was a private land dispute between them without any official involvement that state or police protection would be available to the Applicant if resorted to upon his return to India, 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 part of the country away from his home district in large cities such as Delhi or Mumbai where it would be difficult if not impossible for his cousin to locate him.
9. On 21 March 2018 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 15 June 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 2 October 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.
10. In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence as to his claim of fear of harm from his cousin over their land dispute that caused him to leave his country for Hong Kong that it doubted the credibility of his claim, which was further undermined by his failure to raise it upon his first arrival in Hong Kong until more than 2 years later, and that in any event it was a private family dispute over land without any official involvement that state/police protection would be available to the Applicant upon his return to India as well as reasonable internal relocation for him to move safely to other areas away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.
11. On 8 October 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 just stated that he is not satisfied with the decision as his life is still not safe in his home country but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application. 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.
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. Furthermore, the fact is that it has also been correctly established by both the Director and the Board in their respective decisions 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 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.
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 under all the applicable grounds.
15. 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.
Dated the 12th day of August 2022
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(Chung Lai Fan, Christine)
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant on 12th August 2022
Amrit Pal Singh
Applicant’s ref. no.:
Nil.
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 12th August 2022
Torture Claims Appeal Board
Putative Respondent’s ref. no.:
USM 10875/18/3/327/IN2091
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 453/18 (formerly as RBCZ 13275/16)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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