SUKHVINDER SINGH v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 119/2019

[2022] HKCFI 3262

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 119 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 the Applicant being absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 53-year-old national of India who arrived in Hong Kong on 5 December 2014 as a visitor with permission to remain up to 19 December 2014 when he did not depart and instead overstayed, and on 23 December 2014 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 Shiromani Akali Dal (“SAD”) as he supported their rival Indian National Congress (“INC”) . He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Patiala, Punjab, India. After leaving school he worked as an electrician, got married and raised a family with 3 children in his home district, and supported INC regularly attended their local meetings and rallies, during which he and his fellow supporters would sometimes come into violent conflicts with the local SAD supporters, and on 2 such occasions they were attacked with wooden sticks and other weapons that the Applicant sustained injuries which required medical treatments.

3.  In 2014 the Applicant was approached by some of the SAD supporters demanding that he should switch his support for SAD, and when he refused, they threatened that they would kill him. As the Applicant became fearing for his life, he tehrefore fled from his home district to hide in Nabha City, Chandigarh and Ludhiana, and on 5 December 2014 he departed India for Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 9 March 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

4.  By a Notice of Decision dated 24 April 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”).

5.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those local SAD 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 or reason for them to specifically target him given that he was just an ordinary INC supporter without any official post in the party, 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 part of the country away from his home district in large cities such as Delhi where it would be difficult if not impossible for those local SAD supporters to locate him.

6.  On 9 May 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 9 November 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 20 December 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

7.  In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence as to his political involvement in INC and the threats from SAD supporters that it doubted the credibility of his claim of fear of harm from those SAD people that caused him to leave his family and his country to come to Hong Kong to seek protection, that there is no reliable evidence or reason for SAD to specifically target him given that he was just an ordinary INC supporter without any official post in the party, and that in any event in the absence of any official involvement that state/police protection would be available to the Applicant upon his return to India as well as reasonable internal relocation for him to move safely to other part of the country away from his home district without any risk of being located by anyone that his claim for non-refoulement protection failed on all applicable grounds.

8.  On 14 January 2019 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and put forward the following grounds for his intended challenge:

(1)  That the Director failed to appreciate or give proper weight or importance to the presence of state acquiescence in the Applicant’s case which led to an unfair outcome of rejecting his non-refoulement claim;

(2)  That the Adjudicator failed to make sufficient enquiries before finalizing the determination of the Applicant’s claim by finding that he had failed to provide credible evidence to prove the material elements of his claim when the Applicant was the victim of a torture claim with limited options at his disposal to do so to the tribunal while he was also in the custody if the Immigration Department, and that the Adjudicator also failed to give him sufficient opportunity to arrange relevant evidence for his claim as well as his appeal;

(3)  That the Director failed to take into account of the fact that the Applicant was tortured at the behest of and in full collusion of the police and the state law enforcement agencies as well as politicians as the direct result of misconduct of the police officials that the state would be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(4)  That the Director had listed relevant COI which supported the Applicant’s aversions that the police in his home country would not be able to protect but which the Director failed to consider or give sufficient weight to such evidence and instead ruled otherwise against the Applicant’s case;

(5)  That the Director in his decision had referred to COI with meaning that suited his preconceived conclusion which was a clear case of unfair attitude which in itself is enough to render the decision void; and

(6)  That the Director failed to attain high standard of fairness required by the Wednesbury test in failing to recognize the fact that corruption and incompetency of the administration in the Applicant’s home country is still a very serious problem as various human rights organizations have compiled reports on the matter which stated testament to the Applicant’s assertions.

9.  These are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they would apply to his case or how the Director or the Adjudicator had erred in their decision, or in what way did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why would state acquiescence be relevant to his claim while it is clearly factually incorrect to say that he had been tortured by police or state official when these allegations were clearly never raised in his claim and were simply not relevant to the factual basis of his own case. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge.

10.  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.

11.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 65 – 75 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, 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 to challenge the finding of the Board.

12.  Furthermore, 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 if true 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.

13.  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.

14.  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