JAGDEEP SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 373/2020

[2023] HKCFI 1602

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 373 OF 2020

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 the Applicant in open court / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 31-year-old national of India who arrived in Hong Kong on 16 April 2015 as a visitor with permission to remain as such up to 30 April 2015 when he did not depart and instead overstayed, and on 4 May 2015 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 uncle over some land dispute with his father 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 Sekhupur Khurd, District Sangrur of Punjab, India where he worked as a farmer, and where his father owned some farmland which had been leased to his uncle at a rent.

3.  In 2014 upon the expiration of the lease and as his uncle had fallen into arrears of large amount of rent but failed to settle, his father therefore demanded for the resumption of possession of the land and for his uncle to leave, but when his uncle refused, it led to serious arguments and conflicts between them.

4.  Eventually his father made a complaint to the police against his uncle who then became furious, and together with his followers launched a series of violent assaults on the Applicant and his father with wooden sticks and other weapons.

5.  After several such attacks which caused injuries to him, the Applicant became fearful for his safety and fled to Village Bharri to take shelter in his grandfather’s place, and on 15 April 2015 he departed India for Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 9 October 2018 and attended screening interview before the Immigration Department with legal representation.

6.  By a Notice of Decision dated 23 November 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”).

7.  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 the perceived risk of being harmed or killed by his uncle upon his return to India due to the low intensity and frequency of past ill-treatment from his uncle, that his problem with his uncle was a private family or land 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 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 areas of the country away from his home district in large cities such as Delhi or Mumbai where it would be difficult if not impossible for his uncle to locate him.

8.  On 5 December 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 7 November 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 3 March 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board accepted the Applicant’s claim of fear of harm from his uncle arising from their land dispute but found it was a private family matter between them without any official involvement that state or police protection would be available to the Applicant upon his return to India as well as reasonable internal relocation for him to move safely to other areas of the country away from his home district without any risk of being located by his uncle that his claim for non-refoulement protection failed on all applicable grounds.

10.  On 11 March 2020 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 or in his supporting affirmation of the same date in which he just stated that he does not agree with the decision but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application. As such 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 for his intended challenge.

11.  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.

12.  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.

13.  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.  Furthermore, the Applicant has recently filed an affirmation requesting to withdraw his application as his problem in his home country has already been resolved and that he now wants to return to India.

15.  In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation of no longer any problem for him to return to his home country, I accordingly dismiss 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