JASMEL SINGH v. THE DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 1480/2018

[2020] HKCFI 301

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1480 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 31-year-old national of India who entered Hong Kong illegally on 10 August 2015 and surrendered to the Immigration Department on 11 August 2015 when he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by a fellow villager Amar and his son over a land dispute.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Jhamke Kalan, Tarn Taran, Punjab, India.  After leaving school he worked as a farmer in his family farmland in his home village.

3.  At time unknown to the Applicant, his grandfather had mortgaged one of his lands in their home village to Amar for a loan, but after the loan had been repaid in 2014, despite repeated requests of the Applicant’s family, Amar refused to return the land to them, which led to numerous flights and conflicts between the two families, and in one of the particularly violent fights when two of the Applicant’s uncles were shot dead by Amar’s son and his men who also shot at the Applicant but missed, the Applicant became fearful for his life that he fled to Jalandhar.

4.  After staying in Jalandhar for two months without incidents, the Applicant decided to return to his home village, but on his way he ran into Amar’s son and his followers who then attacked him with hockey sticks that he was subsequently taken back to Jalandhar for medical treatments.

5.  Upon his discharge from the hospital, the Applicant felt that it was no longer safe to remain in India, and so on 6 August 2015 he departed for Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 8 November 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.  Whilst being released on recognizance pending determination of his claim, the Applicant was arrested by police on 15 February 2017 for undertaking unauthorized employment for which he was subsequently convicted and sentenced to prison for 18 months.      

7.  By a Notice of Decision dated 14 December 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 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 assessed the level of risk of harm from Amar and his son upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that his problems with them were some private land disputes 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 3.2 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 Mumbai where it would be difficult if not impossible for Amar or his son to locate him.

9.  The Applicant then 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 12 July 2018 before the Board during which he declined to give evidence or to answer questions put to him by the adjudicator for the Board.  On 20 July 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 from the Applicant during his appeal hearing and based on the available information before it that the Applicant had failed to establish his claim that he would face a real risk of proscribed harm from Amar or his son upon his return to India over their land dispute, and that in any event it was a localized risk without any official involvement that state or police protection would be available to him as well as reasonable internal relocation within India for the Applicant to move safely to other area away from his home district without any risk of being located by Amar that his claim for non-refoulement protection failed on all applicable grounds.

11.  On 27 July 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 as unfair and unreasonable;

(2) that the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence which led to an unfair outcome of rejecting the Applicant’s non-refoulement claim;

(3) that the Director failed to take into account the argument that the state would be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(4) that the Director had failed to consider or to give sufficient weight to those COI which supported the Applicant’s aversions that the police in his home country would not be able to protect;

(5) that the Director instead referred to those COI which suited his pre-conceived conclusion which was a clear case of unfair attitude which in itself is enough to render his decision void;

(6) that the Director failed to recognize the corruption and incompetency of the administration in the Applicant’s home country were still a very serious problem when various human rights organizations have compiled reports on the matter which stated testament to the Applicant’s assertions; and

(7) that the Director failed to attain high standard of fairness required by the Wednesbury test in the decision which should be considered as unreasonable in the scope of Public Law.  

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 to how they applied to his case or how the Director or the adjudicator had erred in their decisions, or in what way was state acquiescence relevant to his claim, or how did the Director fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or how did the Director fail to apply high standard of fairness in assessing his claim.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge.

13.  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.

14.  In the Applicant’s case, 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 his 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.     

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