BHUKAL SUKHCHAIN SINGH v. THE DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 716/2018

[2020] HKCFI 132

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 716 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 23-year-old national of India who entered Hong Kong illegally on 6 October 2015 and was arrested by police on the same day.  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 the family of his girlfriend who objected to their relationship.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Khiala, District Mansa, Punjab, India. After leaving school he worked as an accountant in a company in his home district.

3.  In 2014 he started dating his girlfriend who was from a wealthy family where her father was an influential man in the village with political connections.  As the Applicant came from a lower caste, they kept their relationship as a secret from her family.

4.  One early morning in May 2015 the Applicant sneaked into his girlfriend’s home to meet her, but was discovered by her family members, and when the Applicant tried to escape, he was caught by some of the villagers and was brought back to his girlfriend’s house where he was beaten by her family members including being hit on the head with a rod, and was later handed over to the police where he was subsequently released and was able to receive medical treatment to his head injury.

5.  Several days later when he ran into his girlfriend’s brothers in the village, he was again beaten by them with kicks and punches, and before they left they warned him that he would be killed if he continued to see their sister.

6.  As a result the Applicant became fearful for his life, and was advised by his parents to leave the country, and so on 28 September 2915 he departed for China, 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 on 4 September 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.  By a Notice of Decision dated 20 October 2017 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 (“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 all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his girlfriend’s family upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that after all these years when he had already left his girlfriend that there is no reason for her family to have any further adverse interest in him, that in any event it was a private personal 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 acrossa vast territory of more than 2.9 million square kilometers that it would not be unduly harshfor the Applicant as an able-bodied young man with work experience to move to other partof India away from his home district in large cities such as Delhi or Mumbai where it would be difficult if not impossible for his girlfriend’s family to locate him.

9.  On 27 October 2017 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 27 March 2018 before the Board but other than confirming his case as stated inthe hearing bundle, he refused to give further evidence or to answer any questions raised of his claim despite being invited and advised by the adjudicator to do so.  On 16 April 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.  In its decision the Board found in the absence of any oral evidence or answers to questions from the Applicant that it was unable to form any view as to his assertions of fact,but found that even on his own case that with state protection and internal relocation that hehad failed to establish any real chance that he would suffer any harm or ill-treatment upon hisreturn to India that his claim for non-refoulement protection failed on all applicable grounds.   

11.  On 24 April 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 his non-refoulement claim;

 (2) that their decisions were not reasonable or fair as required by the Wednesbury test;and

 (3) that they failed to accept that the Applicant was a genuine non-refoulement claimant who faced dangerous problems and torture in his home country.  

12.  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 tohow they applied to his case or how the Director or the adjudicator had erred in their decisions,or in what way were their decisions unfair or unreasonable.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant and are not in my view reasonably arguable, and in the absence of any error of law or procedural unfairness in his process before the Director or the Board or in their decisions clearly and properly identified by the Applicant with sufficient particularity, I do not find any reasonably arguable basis for him to challenge the findings of the Director or the Board.

13.  As has been repeatedly emphasized by the Court of Appeal, 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.

14.  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.

15.  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.

16.  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