RANVEER SINGH v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 322/2019

[2022] HKCFI 590

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 322 of 2019

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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 38-year-old national of India who arrived in Hong Kong on 9 June 2015, and when he was refused entry by the Immigration Department, he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by certain local members of the political party Shiromani Akali Dal (“SAD”) for refusing to join their party and for supporting their rival Indian National Congress (“INC”).

2.  The Applicant was born and raised in Village Kot Fatta, District Bathinda, Punjab of India.  After leaving school he worked as a farmer, and followed his family’s tradition in supporting INC by regularly organizing local meetings and rallies.   

3.  In May 2014 during a local election between the candidates of the two rival parties, the Applicant and his elder brother were approached by the SAD candidate and his followers asking them to vote for him and to join their party, and when the Applicant and his brother refused as they supported INC, the SAD supporters proceeded to attack them with wooden sticks, while the SAD candidate also pulled out a pistol and fired several shots into the sky and threatened the Applicant and his brother that if they did not change their mind next time they would be killed.

4.  After winning the local election, the SAD candidate then brought a false drugs trafficking charge against the Applicant and his brother who were then arrested by the local police and were detained for a week during which they were beaten as they refused to confess to the charge, and it was only after their family had paid a bribe to the police that they were subsequently released without charge.

5.  Thereafter the Applicant returned to work in his family’s farmland, but one day in September 2014, the SAD people again came to demand that he joined their party, and when he refused, they beat him with hockey sticks and other weapons that he fell and lost consciousness, and was subsequently taken by his family to the local hospital for medical treatments.

6.  Upon his discharge form hospital, the Applicant fled to Bathinda City to take shelter in his sister’s place, but later when he was again confronted and attacked by some SAD people, he felt it was no longer safe to remain in India, and so on 20 May 2015 he departed for Hong Kong but returned to India after he was refused entry by the Hong Kong Immigration Department.  

7.  On 4 June 2015 the Applicant again departed India but this time for Macau, and from there he then travelled to Hong Kong on 9 June 2015, and when he was again refused entry by the Immigration Department, he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 27 July 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

8.  By a Notice of Decision dated 21 September 2015 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, 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 of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those local SAD supporters upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that there was no evidence of any real intention of the SAD people to seriously harm him or to specifically target him due to his low position in INC, or of any adverse interest in him by the police given that he had been released without charge and that he was able to leave the country twice without any problem, that in any event in the absence of 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 Bangalore where it would be difficult if not impossible for those local SAD people to locate him.

10.  On 8 October 2015 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 17 December 2015 before the Board but elected not to give any further evidence or to answer questions from the Adjudicator for the Board.  On 13 January 2016 his appeal was dismissed by the Board which also confirmed the decision of the Director.

11.  In its decision the Board accepted from the materials and information available before it the Applicant’s claim of being threatened and attacked by the local SAD supporters for refusing to join their party, but found no reliable evidence of any real intention of the SAD people to seriously harm him or to specifically target him given his low position in INC, or of any adverse interest of the police in him in the absence of any documentary evidence and the fact that he was able to leave the country twice without any problem, and that in the absence of any evidence of official involvement that state/police protection would be available to the Applicant upon his return to India as well as reasonable internal relocation for him to safely move to other area away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds. 

12.  Meanwhile on 26 January 2017 the Director on his own initiative in writing invited the Applicant to submit any 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 Article 2 (“BOR 2 risk”), and in the absence of any response from him, the Director by a Notice of Further Decision dated 17 May 2017 also rejected his BOR 2 claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR including right to life under BOR 2 being violated upon his return to India.

13.  On 22 May 2017 the Applicant again lodged an appeal to the Board against this Further Decision of the Director, for which the Board did not hold any further oral hearing and proceeded to deal with the appeal in the Applicant’s absence and on papers, and on 29 November 2018 it again dismissed the appeal upon finding that the Applicant had failed to show that his case would engage the BOR 2 ground, and that as found in its earlier decision in the absence of any evidence of any intention of the SAD people or the police to seriously harm or kill him despite being given further time and opportunity by the Director to do so, and concluded that his claim for non-refoulement protection also failed under the BOR 2 ground.

14.  On 4 February 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Further Decision of the Director dated 17 May 2017 but which had in law been superseded by the Board’s Second Decision, and given the Director’s earlier invitation as noted above for the Applicant to submit any additional information not just for his BOR 2 claim but all applicable grounds for non-refoulement protection, I propose to treat the Applicant’s application as one to challenge both decisions of the Board, but for which he failed to put forth any ground for seeking relief against either decision in his Form, and in his supporting affirmation of the same date the Applicant merely stated that he rejects the decisions of the Director and the Board as they disregarded the danger and threats that he faces in his home country without any details or particulars or elaboration as to how they did so, nor did he put forth any other proper ground for his intended challenge, or 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 either appeals to the Board or in its decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge of either decisions of the Board.

15.  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.

16.  In the Applicant’s case, the Board rejected his claims in both decisions essentially on its adverse finding of any real risk of him being harmed by the SAD people or the police for the thorough and detailed analysis and reasoning set out in the decisions, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.  

17.  Furthermore, the fact is that it has been established by both the Director and the Board in their respective decisions 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.     

18.  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 claims under all the applicable grounds.

19.  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