JASPREET SINGH v. KEVIN ANTHONY BROWNE, ESQ., TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 874/2017

[2019] HKCFI 926

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 874 of 2017

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 refused.

Observations for the Applicant:

1.  The applicant is a 30-year-old national of India who last arrived in Hong Kong on 20 October 2013 with permission to remain as a visitor up to 3 November 2013 when he did not depart and instead overstayed and was arrested by police on 26 November 2013.  After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his paternal uncles over family disputes.  He has since been released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Dhamrai Village, Dina Nagar, Gurdaspur District, Punjab, India.  After leaving school he worked together with his father in the family farmland owned by his grandfather who had five other sons and most of whom also lived in the same village.

3.  One day in February 2012 when the applicant and his father were working on the family farmland, his five paternal uncles came with knives and sticks to demand that they stopped working on the farmland which they claimed to also have an interest in the land.  When the applicant’s father refused, a fight broke out amongst them that the applicant suffered a foot injury.

4.  After the fight the applicant’s father told the grandfather who then called for a family meeting with the paternal uncles at the house of the village head, and at the end of the meeting the village head directed that anyone who again stirred up issues over the family farmland would be penalized with a fine.

5.  However, after the applicant’s grandfather passed away in mid-2012, the paternal uncles again raised issues over the farmland, and one day when the applicant and his father were on their way to work in the farmland, they were ambushed by the five uncles who attacked them with knives during which the applicant was injured in his leg but his father stabbed one of the uncles BS, and in the resultant commotion they were able to flee from the scene to take shelter at the applicant’s maternal uncle’s place in Gota Village.

6.  After learning that BS had later died from his wound, the applicant’s father turned himself over to the police, and was subsequently charged and sentenced to prison for 10 years for the killing of BS, while the applicant continued to hide in Gota Village, but when he heard that his other paternal uncles were holding a grudge against him for the death of BS and had threatened to kill him in revenge when they found him, he decided that it was no longer safe to remain in India and departed on 18 October 2013 for Hong Kong, and when he was subsequently arrested for overstaying he lodged a non-refoulement claim, for which he later completed a Non-refoulement Claim Form (“NCF”) on 17 September 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  By a Notice of Decision dated 27 November 2015 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 torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“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 risk of harm from his paternal uncles upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that he had stayed in his maternal uncle’s place in Gota Village for more than one year without incidents before departing for Hong Kong show that his paternal uncles may not have any real intention to harm or kill him, that it was a family dispute and in the absence of 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 2.9 million square kilometers that it would not be unduly harsh for the applicant as an able-bodied adult with work experience to move to other areas away from his home district in large cities such as Delhi where it would be difficult if not impossible for his paternal uncles to locate him.

9.  By a Notice of Further Decision dated 13 June 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

10.  By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which he filed on 8 December 2015, and for which he attended an oral hearing on before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 3 November 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.  In its decision the Board doubted the applicant’s account of the circumstances in which his father killed BS and found his disputes with his paternal uncles are of a private family nature that concern no convention reason and for which state and police protection would be available to him, and that even if he had been able to show that he faced a real or genuine risk of harm as claimed, it found that the risk was confined to the local area where he and his family had lived, and that it would not be unreasonable for him as an able-bodied young man with work experience to relocate elsewhere in India, and concluded that his claim for non-refoulement protection fails on all applicable grounds.  

12.  On 13 November 2017 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

(2)  irrationality in the adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

(3)  irrationality in the adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in India;

(4)  irrationality in the adjudicator’s failure to analyze and assess whether state protection exists in India and misdirected herself as to the extended meaning of state protection;

(5)  irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(6)  procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the applicant;

(7)  procedural impropriety/unfairness in the adjudicator applying the incorrect standard of proof in her decision; and

(8)  procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the applicant resulting in unfair procedure.  

13.  These are however all very broad and vague assertions of the applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or in what way was his legal representation from his assigned lawyer insufficient.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant, and I do not find any basis or merits in any of them which may render them reasonably arguable.

14.  The only other complaint which the applicant appeared to have made with any elaboration was about the hearing bundle being provided to him only a few days before his appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given him insufficient time to prepare for his appeal.

15.  Even if it is true that the hearing bundle indeed came to him late as alleged, and the applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his NCF, record of his screening interviews and the Director’s decision should be well familiar to the applicant as they had earlier all being made available to him when he still had legal representation, whilst his NCF was completed on his own instructions with legal assistance, and that at his oral hearing he never raised any issue or requested the adjudicator for further time to enable him to better prepare for his appeal.  Accordingly I do not find anything amiss arising from the hearing bundle for the applicant in his appeal before the Board.

16.  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 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.

17.  In the premises and having proceeded to consider 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.

18.  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