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

HCAL 1334/2018

[2020] HKCFI 133

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 1334 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 arrived in Hong Kong on 9 May 2014 with permission to remain as a visitor up to 23 May 2014 when he did not depart but instead overstayed and surrendered to the Immigration Department on 18 June 2014 when he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by two land owners in his home district over certain land disputes.  He was subsequently being released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Chhota Ghar, Moga, Punjab, India. After leaving school he worked as a hair dresser and mobile phones repairer and moved to Faridkot, Punjab.

3.  Upon the passing of his grandfather, he inherited from him a piece of land in Village Nathuwala, Moga some half-an-hour drive from his home in Faridkot.

4.  In 2009 he started to construct a house on the land, but one day the two owners of the adjacent land came over to demand that he stopped the construction as they disputed that the land belonged to them, which led to a heated argument and a scuffle between them until they were restrained by other villagers.

5.  After the incident the Applicant reported a complaint to the local police, but several weeks later those two landowners came over to his land and rebuked him for making the report to the police, and warned him that there would be serious consequence before they left angrily.

6.  On the next evening the two landowners returned with other men and threatened him with violence, but the Applicant managed to flee from the scene and made his way back to Faridkot without further incidents or encounter with those two landowners for the next few years, but in 2014 when he heard that they had located him and were coming after him, he felt it was no longer safe to remain in India, and so on 9 May 2014 he departed for Hong Kong where he overstayed, and later when he surrendered to the Immigration Department, he raised his non-refoulement claim for protection, for which he completed aNon-refoulement Claim Form (“NCF”) on 30 March 2016 and attended screening interviewbefore the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  By a Notice of Decision dated 15 July 2016 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the HongKong Bill of Rights Ordinance (“HKBOR”), 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”).

8.  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 those two landowners upon his return to India as low due to the absence or low intensity and frequency of past ill-treatment from them, that his problems with them were private personal land disputes without any official involvement that state 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 populationof 1.2 billion people spread across a vast territory of more than 3.2 million square kilometersthat it would not be unduly harsh for the Applicant as an able-bodied young man with workexperience to move to other area in India away from his home district in large cities such as Delhi where it would be difficult if not impossible for those two landowners to locate him. 

9.  By a Notice of Further Decision dated 5 July 2017 the Director again rejected the Applicant’s claim in the absence of any response from him to an earlier invitation for him 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”).

10.  By then the Applicant was already in the process of appealing to the Torture ClaimsAppeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 25 July 2016, and for which he attended an oral hearing on 3 January 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 28 June 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.  In its decision the Board found no evidence that the Applicant in fact owned the land in dispute and that his ignorance and lax attitude towards his alleged ownership was unbelievable that it rejected his claim of fear of harm from those landowners, and that in any event it would not be unreasonable or unduly harsh for him to move elsewhere in India to avoid any such harm from them that his claim for non-refoulement protection failed on all applicable grounds.

12.  On 9 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) lack of legal representation for his claim under BOR 2 risk or in his appeal before the Board;

 (2) lack of legal assistance for not providing him with any translation of his NCF to enable him to find out if the interpreter had translated the basis of his claim properly;

 (3) wrongful exercise of case management power on the part of the Director and the Board in their use of the relevant COI and in their balancing exercise of their consideration of the COI; and

 (4) that the Board’s decision was made without proper translation to the Applicant to assist to have a full understanding of his case and to be able to identify any error in the decision.

13.  For his complaint in Ground (1) of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standards of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

14.  The Applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal hearing before the Board and to answer questions put to him by the adjudicator without difficulty, while his claim even on his own case does not engage BOR 2 risk at all.  As such I do not find anything amiss arising from the lack of legal representation in his claim under BOR 2 risk or in his appeal process, and I do not think this ground is reasonably arguable.

15.  As for his complaint under Ground (2) of not being provided with a translation of his NCF, it is clear that his NCF was completed on his instructions to his legal representation from DLS, and that he was assisted by an interpreter at his appeal hearing before the Board.  In the absence of any particulars or specifics to demonstrate that the basis of his claim has indeed been wrongly interpreted or wrongly understood by the Board, I find this complaint of the Applicant simply speculative and without basis.

16.  Regarding his complaint under Ground (3) over the Board’s reliance of COI in its assessment of his claim, again the Applicant has failed to provide any particulars or specificsin support of this complaint, and upon examination of those COI referred to in the decision of the Director as well as those considered by the Board, I do not find any basis in this complaint of the Applicant.

17.  As for his complaint under Ground (4) of not being interpreted or translated the decision of the Board it cannot per se be a valid or arguable ground for his intended challenge and must be rejected as such. 

18.  As has been repeatedly emphasized by the Court of Appeal, the evaluation of risk of harm is primarily a matter for the Director and the Board who are entitled to make their evaluation based on the evidence available to them, and 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 properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see 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.  The fact is that it has been established by both the Director and the Board in their 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.

20.  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.

21.  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