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

HCAL 871/2018

[2019] HKCFI 2375

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 871 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 Applicants:

1.  The 1^st and 2^nd Applicants were husband and wife and national of India who arrived in Hong Kong on 27 July 2014 with permission to remain as visitors up to 10 August 2014 when they did not depart and instead overstayed and were arrested by police on 4 September2014.  After they were referred to the Immigration Department for investigation, they raised a non-refoulement claim on the basis that if they returned to India they would be harmed or killed by the 1^st Applicant’s uncles and their sons over a land dispute in his home village. They were subsequently released on recognizance pending the determination of their claim,and after their son, the 3^rdApplicant, arrived in Hong Kong on 5 November 2016 but when he was refused entry by the Immigration Department, they also raised a non-refoulement claim on his behalf on the same basis to be assessed jointly with their claim.

2.  The 1^st Applicant (“A1”) was born in a village in Punjab, India where his grandfather owned some farmland which upon his death were inherited by his four sons including A1’s father in equal share.

3.  His father passed away when A1 was four years old, and so his mother brought him and his siblings to live with her parents in District Nagar where he worked after leaving school and married his first wife but which later ended in divorce.

4.  In 1992 A1 returned to his home village to claim his title in his father’s land but wasrefused by his uncles who claimed that he and his family had forfeited the entitlement afterthey had left the village, and when he tried to seek help from the village head, he was turned away as his uncles were all influential landowners in the village with political connections.

5.  Later when A1 and his siblings took the dispute to the local court suing their uncles for their share of their father’s land, their uncles would try all sorts of means to delay the proceedings.

6.  In 2008 A1’s sister and her husband took matter into their own hands by ploughing a tractor onto the farmland which led to her uncles calling the police which ended with further heated confrontations with the uncles.

7.  One day in 2009 A1’s sister and husband had a traffic accident when their vehicle was struck by a truck in which his sister was killed while her husband suffered serious injuries.  A1 later heard that the accident was arranged by his uncles to kill his sister over their land dispute.  However, when he reported the matter to the police, they again refused to launch any investigation due to lack of evidence against his uncles.

8.  On another occasion in 2010 A1’s brother together with some friends forced themselves onto the farmland.  Later at night all the friends left but his brother remained. On the following morning his brother was discovered dead with a head injury.  Although he was not present and did not see what actually happened, A1 believed it was his uncles who were behind the murder of his brother.

9.  In 2011 A1 met the 2^nd Applicant (“A2”) and eventually married her and lived with her parents in District Lakhan Ke Padde, Kapurthala.  In September of the same year,A1 brought A2 to visit his father’s land in his home village, during which they ran into the son of one of A1’s uncles who cursed at them and started to throw stones at them with one hitting A2’s head that caused bleeding and later required stitches at a local clinic.

10.  After the incident they became very concerned for their safety and fled to Malaysia in October 2011, returning to India only in February 2012.  As A1 had by then run out of money, he therefore asked his ex-wife for a loan, but when he arrived in his car to her place,he saw some of his uncles’ sons and other men and he realized that it was a trap to kill him,and so he immediately turned his car around and fled home.

11.  Thereafter as he continued to receive threats from his uncles, A1 decided to leave India, and so for the next two years he and A2 had tried staying in various places in Singapore, Malaysia, Thailand and Indonesia, during which A2 gave birth to 3^rd Applicant (“A3”).  In July 2014 they left A3 in the care of A2’s parents in India and came to Hong Kong where they overstayed and raised their non-refoulement claim for protection, and when A3 later arrived in November 2016, they also raised a similar claim for him, and for which they jointly completed a Non-refoulement Claim Form on 2 March 2017 but failed to attend any of the scheduled screening interviews before the Immigration Department for alleged medical reasons, and in lieu they answered a list of questions raised by the immigration officer with legal representation from the Duty Lawyer Service (“DLS”).

12.  By a Notice of Decision dated 31 May 2017 the Director of Immigration (“the Director”) rejected the Applicants’ 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 (“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”).

13.  In his decision the Director took into account all the relevant circumstances of the Applicants’ claim and found no substantial grounds for believing that the risk of harm they perceived upon their return to India is likely to materialize due to the low intensity and frequency of past ill-treatment from A1’s uncles or their sons, that their problems with them were private family disputes without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objectiveCountry 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 2.9 million square kilometers that it would not be unduly harsh for A1 as an able-bodied adult with work experience to move with his wife and son 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 uncles to locate them.

14.  The Applicants then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which they attended an oral hearing on 6 March 2018 before the Board during which both A1 and A2 gave evidence and answered questions put to them by the adjudicator for the Board.  On 4 May 2018 their appeal was dismissed by the Board which also confirmed the decision of the Director.

15.  In its decision the Board found the evidence of both A1 and A2 inconsistent, vague and implausible that both were not credible witness, and rejected their claim that A1 had any dispute with his uncles or cousins over land in their home village, or that they had ever been threatened or assaulted by them, or that they had come to Hong Kong out of such fear, and concluded that they do not face any real risk of proscribed harm from A1’s uncles or cousins if refouled to India that their claim failed on all applicable grounds.

16.  On 18 May 2018 the Applicants filed their Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in their supporting affirmation of the same date they put forward the following grounds for their intended challenge as summarized:

 (1) that it was unfair for the Director to dispose of their case without arranging any hearing or screening interview for them;

 (2) that it was unfair that the Board’s decision was never translated or explained to them through an interpreter;

 (3) that the various incidents occurred to them in India were viewed by the Director asisolated or coincidental or were taken out of context in his assessment of their claim;

 (4) that it was unfair to attack the credibility of the Applicants’ claim without taking into consideration of A1’s medical problems and condition;

 (5) that it is unfair to force them to return to India now that they have a small child to care for; and

 (6) that the court should review their case carefully and fairly.  

17.  These are however mainly just broad and vague assertions of the Applicants containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to their case or how the Director or the Board had erred in their decision, while the complaint of not being given further screening interview before the Immigration Department has in my view no merit as the Director was entitled not to schedule any further interview and instead substituted it with list of questions for the Applicants to answer with legal assistance from DLS after their repeated failure to attend those previously scheduled interviews, and as they were able to subsequently attend their oral hearing in their appeal which was a rehearing to present their case before the Board without any difficulty, and that their other complaints under (2), (5) or (6) are simply not arguable grounds for challenging the Board’s decision.

18.  As has been repeatedly emphasized by the Court of Appeal, judicial review does notoperate as a rehearing of a non-refoulement claim when the proper occasion for an 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.

19.  More significantly, although the Applicants had requested for an oral hearing for their application, they did not appear at the scheduled hearing on 5 July 2019, for which subsequently A2 on 8 July 2019 in writing informed the Court that her husband A1 had passed away on 11 June 2019, and that she would attend the next hearing by herself.  At her request the Court therefore scheduled a further hearing on 9 August 2019 and informed A2 accordingly, but again she failed to attend without any explanation.  Subsequently the Court was informed by the Immigration Department that A1 had died from a heart attack as evidenced by his death certificate.  Given the fact that the claim of A2 and A3 depended entirely on A1’s claim of fear of harm from his uncles over their land dispute in his home village, such risk has accordingly also died with A1.

20.  Even if I were wrong and that such risk somehow still persists as against A2 and A3, the fact that it has been established by the Director in his decision that the risk of harm in the Applicants’ claim is a localized one and that it is not unreasonable or unsafe for them torelocate to other part of India, and for that matter now for A2 and A3 to return to her parents’home in Kapurthala, a decision also confirmed by the Board, there is simply no justificationto afford A2 or A3 with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

21.  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 Applicants’ claim.

22.  For these reasons I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, and I accordingly refuse their 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