MANDEEP SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 157/2019

[2021] HKCFI 3551

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 157 of 2019

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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;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 33-year-old national of India who entered Hong Kong illegally on 26 October 2015 and was arrested by police on 27 October 2015.  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 uncle over a land dispute in his home village.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Kandial, District Gurdaspur, Punjab, India.  After leaving school he assisted his parents in farming on his father’s farmland in his home village inherited from his grandfather’s estate from which his father’s two brothers also received their share.

3.  In 2008 after the government had announced to build a road and school next to his father’s farmland, its value had gone up that in 2010 one of his brothers offered to buy the land but was rejected by the Applicant’s father.

4.  Thereafter some unknown men approached the Applicant suggesting that he should persuade his father to sell his farmland to his uncle or else there would be serious consequences but refused by the Applicant who suspected that these men were sent by his uncle to put pressure on his father to sell his land to his uncle.

5.  A few days later one night the Applicant was abducted by some masked men to an unknown place where he was beaten with hockey sticks and baseball bats into unconscious.  Later when he came to his sense the Applicant found himself abandoned in a remote area and his body covered with cuts and bruises, and was eventually discovered by some passers-by who then brought him to the hospital where he was hospitalized for one month.    

6.  Upon his discharge from hospital, and as his family suspected that it was his uncle who was behind the attack so as to force his father to sell the land, and so they advised  the Applicant to save his life by leaving India, which he did in 2011 when he left for Dubai where he worked as a construction worker before returning to India a year later, but when his uncle was still pressuring his father to sell him the land, he left for Delhi where he stayed for 6 months before departing India in 2015 for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 29 October 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 22 January 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 found no substantial grounds for believing that his claimed future risk of harm by his uncle upon his return to India is real and foreseeable due to low intensity and frequency of past ill-treatment from his uncle, that it was a private family land dispute between his uncle and his family 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 2.9 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 India away from his home district in large cities such as Delhi where he had stayed before without incidents and where it would be difficult if not impossible for his uncle to locate him.

9.  On 1 February 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 22 October 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 14 January 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.  In its decision the Board found multiple inconsistencies and implausibilities in the Applicant’s evidence as well as non-persuasive explanations that it did not regard him as a credible witness and concluded that he had fabricated his claims of dispute between his uncle and his family over land or of threats and ill-treatment from his uncle on him that caused him to leave India for Hong Kong so as to create a basis upon which to apply for non-refoulement protection that his non-refoulement claim failed on all applicable grounds.  

11.  On 17 January 2019 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 and a subsequent written submission dated 4 October 2021 he just stated that he is not satisfied with the decision and repeated his claim as before of fear of harm to his life as he still has problem in his home country that he must remain in Hong Kong to save his life but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application.

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.  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 24 – 38 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 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 to challenge the finding of the Board.  

14.  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 if true is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, a decisionalso 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