BHATTI JASPAL SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 3249/2019

[2024] HKCFI 430

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3249 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 the Applicant in open court / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 45-year-old national of India who entered Hong Kong illegally on 3 April 2013 and almost 3 years later on 10 March 2016 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 certain local supporters of the political party Indian National Congress Party (“INC”) as he supported their rival Shiromani Akali Dal (“SAD”). He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Mudki, Ferozepur, Punjab, India. After leaving school he worked as a labourer in his home district before starting his own auto repair shop in 2010, and followed his family’s tradition to support SAD regularly attended their local meetings and activities without holding any official post in the party.

3.  During the 2012 general election, the Applicant and his fellow SAD supporters were often confronted by their rival INC supporters in their home village, and on one such occasion the Applicant was attacked by 3 INC supporters in the market that he suffered injuries to his head and shoulders, and was taken to the hospital for medical treatment, while those assailants were subsequently arrested by police but were later released after being bound over to keep the peace.

4.  Several months later one evening while he was on his way home from work, the Applicant was attacked by several strangers whom he suspected to be INC supporters with bamboo sticks that he broke his left elbow and passed out, and was subsequently taken to the hospital by some villagers for medical treatment.

5.  Upon his release from hospital the Applicant became fearful for his safety, and so in March 2013 he departed India for China, and from there he later sneaked into Hong Kong, and some 3 years later on 10 March 2016 he surrendered to the Immigration department and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 29 December 2017 and attended screening interview before the Immigration Department with legal representation.

6.  By a Notice of Decision dated 28 February 2018 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 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”).

7.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of him being harmed or killed by those local INC supporters upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill him given that he was just an ordinary SAD supporter without holding any official post in the party or any reason for them to still have any adverse interest in him all these years since he left the country, 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 areas of the country away from his home district in large cities such as Delhi or Mumbai where it would be difficult if not impossible for anyone to locate him.

8.  On 9 March 2018 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 11 September 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 28 October 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s claim that it doubted his claim of being involved in SAD’s political activities or of fear of harm from those rival INC supporters that caused him to leave his home country to come to Hong Kong to seek protection given his lack of knowledge of anything about his claimed party, that his credibility was further undermined by his failure to raise his non-refoulement claim upon first arrival in Hong Kong until some 3 years later, and that at best that he was just an ordinary SAD supporter without any official post in the party that it is not accepted that there would be any adverse political interest in him after all these years since he left the country that it is not accepted that he would face any risk of harm from anyone for political reason upon his return to India that it concluded that his claim for non-refoulement protection failed on all applicable grounds.

10.  On 31 October 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no proper ground for seeking relief was given in his Form or in his supporting affirmation of the same date in which he just attached a copy of the decision but without putting forth any proper ground for his intended challenge. As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

11.  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.

12.  In the Applicant’s case, the Board dismissed his claim essentially on its adverse findings on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 38 – 52 of its decision with the benefit of hearing him in his oral evidence and answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

13.  Furthermore, the fact is that it has also been correctly established by the Director in his decision that the risk of harm in the Applicant’s claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

14.  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.

15.  Moreover, the Applicant recently on 16 January 2024 filed an affirmation requesting to withdraw his application as his problem in his home country has been resolved and that he now wants to go back to India.

16.  In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation of no more problem returning to his home country, I according dismiss 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