SAKATTER SINGH v. DIRECTOR OF IMMIGRATION

HCAL 315/2018

[2020] HKCFI 779

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 315 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 30-year-old national of India who arrived in Hong Kong on 16 September 2015 with permission to remain as a visitor up to 30 September 2015 when he did not depart, and instead overstayed until 2 October 2015 when he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his creditor for failing to repay his loan.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Khaira Kotli, Bhakhriwal, Gurdaspur, Punjab, India.  After leaving school, he borrowed a loan in late 2010 from his former schoolmate to start his own business, but when he got into problems with his business,he had difficulties making his loan repayment, and one day in early 2012 his creditor and his follower beat him with iron rods and threatened to kill him if he still failed to repay his loan soon.

3.  After receiving treatments for his injuries at the hospital, the Applicant did not report the incident to the police as he knew that his creditor was a powerful local gangster,but when his creditor later came and fired their gun into the air outside his home with a last warning to him that that he would be killed if he still failed to repay his loan, the Applicant fled to Chandigarh and asked his family to negotiate with his creditor, but when he heard that his creditor had also assaulted his family members, he decided that it was no longer safe to remain in India, and therefore departed on 31 October 2014 for Hong Kong when he then went to Macau where he worked as a security guard.

4.  However, when he heard that his creditor has sent men to look for him in Macau,he then fled to China on 14 September 2015, and later came to Hong Kong again where he overstayed and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 24 July 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.  By a Notice of Decision dated 7 August 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”).

6.  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 creditor to the Applicant upon his return to India as low due to the low intensity and frequency of past ill-treatment from his creditor, that it was a personal monetary dispute between the two of 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 that it would not be unduly harsh for the Applicant as an able-bodied young man with work experience to move to other part of India away from his home district in large cities such as Delhi where it would be difficult if not impossible for his creditor to locate him.

7.  On 15 August 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 24 November 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 22 December 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision the Board had reservation as to the truthfulness of the Applicant’s evidence as to his claim of fear of harm from his creditor, but found in any event that his creditor had no intention of harming or killing him other than to pressurize him to repay his loan, and that with state protection and reasonable internal relocation alternatives available for the Applicant to move safely to other part of India away from his home district whether it would be difficult if not impossible for his creditor to locate him that his claim for non-refoulement protection failed on all applicable grounds.

9.  On 28 February 2018 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)     that the Board’s decision was unreasonable in that the adjudicator failed to consider all the matter raised in the Applicant’s claim; and

     (2)     that the adjudicator failed to give adequate reason for his decision.  

10.  These are however just broad and vague assertions of the Applicant 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 all the matters raised in his claim, or exactly how did the adjudicator fail to give adequate reason for his decision.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and in the absence of any legal error or procedural unfairness being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

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

13.  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.

14.  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