MANJINDER SINGH v. TORTURE CLAIMS APPEAL BOARD /NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 299/2017

[2019] HKCFI 93

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 299 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 the Applicant being present / absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 26-year-old national of India who arrived in Hong Kong on 26 February 2014 with permission to remain as a visitor up to 5 March 2014 when he did not depart and instead overstayed until 10 March 2014 when he surrendered to the Immigration Department and lodged a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his girlfriend’s family who were against their relationship.  He has since been released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Beas, District Amritsar, Punjab, India.  After graduating from university with a degree of Bachelor of Arts, he assisted in his family’s farming.

3.  In about 2008 he started a relationship with his girlfriend who was from a higher caste and a wealthy family with political connections, and knowing that her family would not approve of their relationship which they had therefore kept as a secret from them.

4.  However, in 2013 his girlfriend’s family had made marriage arrangement for her which was against her wish, she therefore revealed to her family of her relationship with the applicant which was however strongly opposed by her parents who insisted that she immediately stopped seeing the applicant.

5.  After the applicant learnt about it he asked his parents to go to his girlfriend’s home to make a marriage proposal for them to her parents, but it was rejected by her father who threatened to kill the applicant if he did not end the relationship or that he would make a complaint to the police against him for seducing his daughter.

6.  The applicant then decided with his girlfriend to elope to Chandigarh where they planned to get married, but when they arrived at the Jalandhar bus terminal, they were surrounded by his girlfriend’s family members who proceeded to assault the applicant with baseball bats and wooden sticks that injured his right foot but he managed to flee from the scene and took shelter at his aunt’s home in Mianwind.

7.  However, later when he was told by his family that the police had come looking for him as his girlfriend’s father had made a complaint against him for seducing his daughter, he decided that it was not safe to remain in India, and so on 26 February 2014 he departed for Hong Kong where he overstayed and lodged his non-refoulement claim, for which he later completed a Non-refoulement Claim Form on 26 August 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service, when he further revealed that after his departure for Hong Kong, his girlfriend had committed suicide as she did not want to go through the marriage arranged by her parents, and that her family and the police were still looking for him.

8.  By a Notice of Decision dated 14 March 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 (“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”).

9.  In his decision the Director took into account all the relevant circumstances of the applicant’s claim and assessed the risk of harm to the applicant upon his return to India as low due to the low intensity and frequency of past ill-treatment from his girlfriend’s family, that it was a private and personal dispute that in the absence of any reliable evidence 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 that it would not be unduly harsh for the applicant as an able-bodied young man with a university degree to move to other part of India away from his home district such as Mumbai where it would be difficult if not impossible for his girlfriend’s family to locate him.

10.  By a Notice of Further Decision dated 24 March 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 BOR 2 risk.

11.  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, which appeal he filed on 23 March 2016, and for which he attended an oral hearing on 13 April 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 8 May 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

12.  In its decision the Board upon hearing the applicant in evidence found serious doubts on his version of how he came about coming to Hong Kong for the detailed reasons and analysis in paragraphs 35 – 36 of its decision about his inability to provide general information about his studies in the university, or about his girlfriend such as even her age, or any details of his alleged assault by her family members, that if indeed the police were looking for him that in the absence of any evidence to the contrary that they were simply carrying out their lawful duties of investigation after receiving the complaint from his girlfriend’s family, and that if his asserted fear of harm from his girlfriend’s family is true that there are many places to where he can relocate in India where there are seven cities with a large population of over 5 million people such as New Delhi or Mumbai where it would be impossible for his girlfriend’s family to locate him.

13.  On 16 June 2017 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 the Form, and in his supporting affirmation of the same date he simply deposed that:

“ The decision taken by the Torture Claims Appeal Board/Non-refoulement Claims Petition Office for my application for seeking non-refoulement protection in Hong Kong is not correct. The Immigration Department have failed to consider the ground realities in India before reaching at this decision.”

14.  The applicant did not request for any oral hearing for his application.  Accordingly no hearing was held, and up to now no ground has been put forward by him for his intended challenge as to what error that the Board or the adjudicator, or for that matter the Director, may have made in their decisions. 

15.  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 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 Re Litoun Mounsy [2018] HKCA 537.

16.  Further, 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 [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