GURSAHIB SINGH v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 183/2017
[2018] HKCFI 196

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 183 of 2017

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 an Indian man born on 8 May 1988 in District Ferozepur, Punjab, India.  He is single with seven years of education and used to work as a farmer in Cyprus while his parents and three siblings live in India.  He had been in a relationship with a girl from a wealthy family in a neighboring village where her father was a big landlord, a business man and a supporter of the Deputy Chief Minister of Punjab but no connection with the state or government. They had kept their relationship a secret from her family and when the applicant was in Cyprus they would keep in touch by telephone.  On 14 August 2013 the applicant came to Hong Kong as a visitor with permission to stay until 28 August 2013 during which he telephoned his girlfriend in India when their conversation was overheard by her brother who then threatened him on the phone.  On the following day the applicant was informed by his brother in India that the girl’s family had been looking for him with threats to kill him on his return to India as he was poor and they strongly opposed to them seeing each other.

2.  As a result the applicant was afraid to return to India and therefore overstayed in Hong Kong when he was subsequently arrested by the police on 8 September 2013 and was referred to the Immigration Department on the following day for investigation.  On 10 September 2013 he lodged a non-refoulement claim with the Immigration Department for fear that if he were to return to India he would be harmed or killed by his girlfriend’s father and brother as they were against their relationship and did not want him to marry her.

3.  By a Notice of Decision dated 1 December 2015 the Director of Immigration (“the Director”) rejected his claim under torture risk within Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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”).

4.  By a supplemental decision dated 21 April 2017 the Director also assessed the applicant’s claim under Article 2 of Section 8 of the HKBOR including right to life (“BOR 2 Risk”) and again rejected his claim.

5.  In assessing the applicant’s claim the Director did take into consideration all applicable grounds referred to above and found that it was a purely private dispute between the applicant and the girl’s family, that the absence or low intensity and frequency of such ill-treatment from her family is indicative of a small future risk of harm upon his return to India, that the availability of state protection further lowers or negates the level of risk, and that objective COI reports show that internal relocation alternatives are available and reasonable given that India has such a vast territory and with such a large population of 1,251 million that there are many districts and cities that the applicant can safely relocate and work for a decent living.  I am unable to find any error in law or unfairness in procedure in his assessment and rejection of the applicant’s claim.       

6.  On 10 December 2015 the applicant filed an appeal/petition against those decisions to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”), and on 27 April 2017 the Board dismissed his appeal and confirmed the Director’s decisions.

7.  In its decision the Board confirmed that no oral hearing was necessary as there was no issue as to the applicant’s credibility and that it was satisfied that the appeal could justly be determined.  On this I note that the applicant never asked for it either.  The Board then proceeded to similarly find that the applicant’s case at the highest clearly relates to a wholly domestic situation which does not involve the Indian authorities in any way, noting that the applicant only complains of verbal threats and not actual physical violence and hence it is clearly not torture as defined by section 37U of the Ordinance, nor does it amount to torture or cruel inhuman or degrading treatment or punishment for the purpose of BOR 3 risk.

8.  The Board also agreed with the Director that there is no scintilla of evidence that if returned to India the applicant’s BOR 2 rights would be infringed, and that if he genuinely fears further threats from the girl’s family, then that fear appears to be related to only his hometown in Ferozepur District, and hence there is no reason why he as an able-bodied young man accustomed already to living independently in a foreign territory could not relocate to another town or city in India away from the Ferozepur District.  In the premises I am unable to see any error in the Board’s dismissal of his appeal.      

9.  On 5 May 2017 the applicant filed his Form 86 for leave to apply for judicial review of the decisions of both the Director and the Board, and in his supporting affirmation of the same date he complained of many errors in those decisions but without giving any details or particulars.  There is however amongst the papers provided to me an unsigned and undated document consisting of five pages typed in English which I believe is from the applicant as he expressed his gratitude for being given the opportunity to judicial review, and in which he made various assertions of unfairness on the part of the Director and the Board in their assessment of his case, but upon close and careful examination they essentially boil down to only two grounds as follows:

(1) he was unable to submit additional facts on BOR 2 Risk in support of his case as he never received the letter from the Director inviting him to do so; and

(2) there was unfair procedure in that the decision maker failed to carry out research and inquiry into COI conditions in India, or failure to put any or sufficient weight on those matters relevant to his case for non-refoulement before deciding on the availability of internal relocation for him.

10.  For the first ground that he never received the letter from the Director inviting him to submit additional facts relevant to his case, even if that was indeed the case and that high standard of fairness means that he be accorded the benefit of doubt, the applicant would still have had ample opportunity to do so in his appeal before the Board and afterwards, as he has done with this five-page document in which he asserted that a lot of things happened and circumstances changed since he left India including alleged torture of his family, the death of his cousin sister and the burning down of his home, all of which he claimed to have occurred the year before that document and hence in 2016, which would have given him ample time and opportunity, and with the assistance of his family, to produce more solid evidence given the severity of such alleged acts other than just his bare assertions, but which he neither did before the Board during which he never requested for any oral hearing, nor as noted above did he in this document now before me.  In the circumstances I agree that the Director was right to reject his claim under BOR 2 Risk, and that there is no arguable ground of unfairness in procedure in the process before the Board.     

11.  As for the second ground, it is plain that the threats from the girlfriend’s family and hence the risk of persecution or torture is, as clearly found by both the Director and the Board, a localized one confined to the applicant’s home district of Ferozepur, and that as properly and adequately analyzed in both of their decisions that objective COI reports show that it is not unreasonable or unsafe for the applicant to relocate to another part of India, this is therefore clearly no reasonably arguable basis in this ground for judicial review.

12.  In conclusion I do not see any error of law or procedure in the proceedings before the Director or the Board, nor is there any reasonably arguable basis to challenge the fairness of the process. Accordingly there is no prospect of success in the intended application for judicial review, and I therefore refuse leave for the 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