GURPREET SINGH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 1302/2018

[2019] HKCFI 2600

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1302 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 33-year-old national of India who arrived in Hong Kong on 18 January 2012 with permission to remain as a visitor up to 1 February 2012 when he did not depart and instead overstayed and was arrested by police on 20 February 2012.  After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to India he would be harmed or killed by his girlfriend’s family which opposed their relationship, and upon his torture claim being rejected by the Immigration Department, he then raised a claim for non-refoulement protection on the same basis.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Dhole Wala, District Moga, Punjab,India.  After leaving school he worked as a farmer in his home village, and lived with his mother alone after his father passed away.

3.  In 2011 he started dating his girlfriend who was from a wealthy family from a neighboring village where her father was the village head and her brothers were all supporters of the political party Akali Dal in Punjab.

4.  As her girlfriend’s family considered the Applicant as a poor farmer and not suitable for their caste and status, they opposed their relationship and subjected the Applicant to all sorts of threats and harassments to force him to cease his relationship with his girlfriend,including making a false claim to the police in August 2011 that he had assaulted one of her brothers for which he was arrested and detailed overnight until the following day when he was able to make bail, and then one day in September 2011 he was ambushed on the street by her brothers who beat him violently with wooden sticks with a warning for him to stop seeing their sister or else they would kill him.

5.  As a result the Applicant was hospitalized for his injuries, and upon his discharge from the hospital he made a report to the police but no follow-up action was taken by them,and one day in October 2011 he and his mother were abducted by his girlfriend’s brothers and were taken to a secret place where he was beaten badly with wooden sticks until he lostconsciousness.  Upon regaining consciousness, the Applicant was warned to stop seeing his girlfriend or else he and his mother would be killed before they were eventually released.

6.  Fearing for their life the Applicant and his mother then fled their home for Amritsar which was a 100 km away, but when he later saw his girlfriend’s father and brothers in the vicinity, and when he heard that his girlfriend had after he left committed suicide and that her family was looking for him everywhere to take revenge against him, he decided that it was no longer safe to remain in India, and so on 18 January 2012 he departed for Hong Kong where he subsequently overstayed, and upon his arrest by the police, he raised his torture claim which was rejected by the Immigration Department when he then raised his claim for non-refoulement protection, for which he completed a Supplementary Claim Form with legal representation from the Duty Lawyer Service (“DLS”).

7.  Whilst released on recognizance pending determination of his claim, the Applicant was arrested by police again for using another person’s identity card and for theft for which he was subsequently convicted and imprisoned for 12 months.

8.  By a Notice of Decision dated 21 August 2017 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the remaining applicable grounds except torture risk but included 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”).

9.  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 girlfriend’s family 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 private personal 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 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 girlfriend’s family to locate him.

10.  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 11 April 2018 before the Board with legal representation from DLS during which he just confirmed what he had already stated in the hearing bundle without giving any further evidence in respect of his claim.  On 21 June 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

11.  In its decision the Board found no reliable evidence that the Applicant’s girlfriend had indeed committed suicide or that her family was still looking for him for revenge, and that in any event with state protection and reasonable internal relocation available that it would not be unduly harsh for the Applicant to safely relocate to other parts of India to avoid any threats from his girlfriend’s family that his claim for non-refoulement protection failed on all applicable grounds.  

12.  On 6 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 in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

 (1) that the Director wrongfully determined his case;

 (2) that the adjudicator did not address the issues properly and instead just came up with an assessment more or less of a template basis;

 (3) that the Director wrongly assessed his risk of harm from his enemies upon his return to India as low due to availability of state protection as police did not help him when he first made his report to them;

 (4) that the adjudicator wrongly exercised his case management power by putting undue weight on reports of state protection which showed common corruptions amongst police in India and that he did not get any assistance from the police when he first made his report to them; and

 (5) that the Director and the adjudicator wrongly exercised their case management power by putting too much weight on COI which did not reflect the true situation in India.  

13.  These are however mostly just broad and vague assertions of the Applicant containing several pages of 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 how they wrongfully determined his claim, or how they failed to address the issues properly or exercised their case management power wrongly.

14.  As for his complaints of their reliance of COI on state protection, upon careful examination of those relevant COI referred to by the Director and the adjudicator in their decisions, of which I found that both had taken a balanced view on police corruptions and reforms undertaken by the authorities in India, as well as their effective legal and judicial systems as revealed by the latest relevant COI, I do not find any basis or merits in these complaints of the Applicant, nor are they reasonably arguable for his intended challenge.  

15.  As has been repeatedly emphasized by the Court of Appeal, as 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.  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.

17.  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.

18.  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