GURJANT SINGH v. ADJUDICATOR OF TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 139/2018

[2020] HKCFI 59

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 139 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 28-year-old national of India who last arrived in Hong Kong on 22 September 2015 with permission to remain as a visitor up to 24 September 2015 when he did not depart and instead overstayed, and on 13 October 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 paternal uncles over a land dispute. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Sarakpur, Tehsil Guhla, Kaithal, Haryana, India.  After leaving school he worked as a car mechanic and lived with his parents in his home village.

3.  His grandfather used to own various plots of lands in the village, and after his death his lands were distributed amongst his three sons, ie the Applicant’s father and his two paternal uncles.  Later the Applicant’s father transferred some of his lands to the Applicant and his brother which were adjacent to the lands owned by his uncles in the village, and on which the Applicant would grow crops and vegetable.

4.  His dispute with his uncles arose in about 2014 when they planned to build a factory on their adjacent land but as it would extend onto the Applicant’s land, they therefore wanted the Applicant to transfer his land to them, but when the Applicant refused, his uncles would threaten to kill him if he did not accede to their demand.

5.  The Applicant therefore brought the issue to the village council but to no avail as his uncles were wealthy and influential members in the village with political connections.

6.  One day in 2015 some gangsters came onto the Applicant’s land to ruin his crops and vegetation, and when the Applicant tried to stop them he was beaten up with sticks and rods that he was later brought to the local hospital for treatment.

7.  Upon his discharge from hospital, the Applicant suspected that the gangsters were sent by his uncles, and hence he made a complaint to the local police, but when they failed to follow up with any investigation, he had a row with some of the police officers for which he was arrested, and later when his uncles filed a false charge against him, he was detained by the police for interrogations.

8.  During his detention the Applicant was threatened by the police to confess to the charge, and when he refused he was deprived of his sleep, but he remained steadfast with his innocence and was eventually released after two weeks when his parents hired a lawyer to bail him out.

9.  On the following day his uncles came with gang members armed with knives and other weapons and threatened to kill the Applicant unless he gave them his land and to withdraw his complaint to the police, and when the Applicant asked for more time to consider their demand, they agreed and then left without further incident.

10.  However, later in July 2015 the Applicant and his brother were ambushed and attacked by their uncles’ men with baseball bats until they were restrained by other pedestrians, and that the Applicant and his brother were later taken to the hospital for medical treatments.

11.  After the assault the Applicant fled to Ludhiana City in Punjab, and from there he departed India on 18 September 2015 for Hong Kong where he overstayed and later surrendered to the Immigration Department and raised his non-refoulement claim, for which he completed a Non-refoulement Claim Form on 3 October 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

12.  By a Notice of Decision dated 17 November 2016 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all 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 Applicant’s claim and assessed the level of risk of harm from his uncles upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that his problem with his uncles was a private family dispute 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 young man adult with work experience to move to other part of India away from his home district in large cities such as New Delhi where it would be difficult if not impossible for his uncles to locate him.

14.  On 30 November 2016 the Applicant 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 30 November 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 23 January 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

15.  In its decision the Board accepted that the Applicant may have a dispute in relation to land with his uncles in their home village, but found that with state protection and reasonable internal relocation available, it would not be unreasonable or unduly harsh for the Applicant to move safely to other part of India, and that it was not satisfied that there is any substantial ground for believing that he would be harmed by his uncles upon his return to India that his claim for non-refoulement protection failed on all applicable grounds.

16.  On 30 January 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 merely stated that their decisions were incorrect in that they failed to consider the realities in India before reaching their decisions, but he did not provide any particulars or specifics or elaborations as to how they did so, and that it is clear from their decisions that the relevant COI on India had indeed been fully and properly considered by both the Director and the Board, and that given the nature of the Applicant’s claim that even on his own case that it was a private family dispute without any official involvement,I do not find any basis or merit in this complaint of the Applicant, nor do I find this ground reasonably arguable for his intended challenge.

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

18.  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.

19.  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.

20.  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