NIRMAL SINGH v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 2105/2018

[2020] HKCFI 2283

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2105 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 27-year-old national of India who arrived in Hong Kong on 1 June 2014 with permission to remain as a visitor until 3 June 2014 when he did not depart and instead overstayed and was arrested by police on 18 June 2014.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his paternal uncle over a 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 Dadehar Sahib, Tehsil District, Tarn Taran, Punjab, India.  After leaving school he worked as a farmer in his father’s farmland in their home village inherited from his grandfather.

3.  Although his paternal uncle also received his share of the land from the grandfather, his frequently raised issues over the share of the Applicant’s father which had led to many disputes between the two families.

4.  In 2013 the Applicant’s father transferred his farmland to the Applicant, and his uncle started to threaten and harass the Applicant, and had on several occasions together with his two sons assaulted the Applicant, and after his uncle had made a false claim to the police against him, the Applicant fled to Uttar Pradesh, and from there he on 1 June 2014 departed India for Hong Kong where he overstayed, and after his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 12 April 2016 and provided answers to a list of questions raised by the Immigration Department with legal representation from the Duty Lawyer Service.

5.  By a Notice of Decision dated 14 December 2016 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”).

6.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that he would be in danger of being harmed or killed by his uncle upon his return to India due to the low intensity and frequency of past ill-treatment from his uncle or his uncle’s sons, that it was a private family land dispute between them 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 young man with working experience to move to other part of India away from his home district in large cities such as New Delhi where it would be difficult if not impossible for his uncle to locate him.

7.  On 20 December 2016 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 17 September 2018 before the Board during which he however refused to answer many of the 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.

8.  In its decision the Board found the Applicant’s refusal to answer various queries raised of his claim of land dispute with his uncle resulted in many inconsistencies and discrepancies over his claim unanswered that it was not satisfied that the Applicant’s claims are truthful or that there are substantial grounds for believing that he will face any risk of harm from his uncle or that he genuinely fears harm from his uncle upon his return to India that his claim for non-refoulement protection failed on all applicable grounds.    

9.  On 3 October 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and put forward the following grounds for his intended challenge:

(1) that the Director and the adjudicator reached their decisions wrongly in assessing the Applicant’s non-refoulement claim as their decisions were not reasonable or fair;

(2) that the adjudicator failed to give the Applicant sufficient time and chance to arrange relevant evidence for his non-refoulement claim as well as his appeal;

(3) that the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence which led to an unfair outcome of rejecting the Applicant’s claim;

(4) that the Director failed to take into account the fact that the Applicant was tortured at the behest of the state law enforcement agencies and politicians for which the state would be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(5) that the Director failed to consider or give weight to those evidence in the listed relevant COI which support the Applicant’s aversions that the police in his country would not be able to protect;

(6) that the Director failed to consider the fact that corruption and incompetency of the administration in the Applicant’s country is still a very serious problem as reported by various human rights organization which stated testament to the Applicant’s assertions; and

(7) that the Director failed to attain high standard of fairness required by the Wednesbury test in his decision which should be considered unreasonable in the scope of public law.  

10.  These are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the adjudicator had erred in their decisions, or what relevancy was state acquiescence to his claim, or in what way did they fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or how did the adjudicator fail to give him sufficient time and opportunity to provide evidence for his claim or appeal, or how did the Director fail to apply high standards of fairness in assessing his claim.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant.  As such 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 25 – 40 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 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 part 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.     

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 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