LAKHWINDER SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 167/2019

[2022] HKCFI 3281

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 167 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;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 42-year-old national of India who arrived in Hong Kong on 26 August 2016 as a visitor with permission to remain up to 10 September 2016 when he did not depart but instead overstayed, and on 14 September 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 his uncle over a land dispute in his home village. He was subsequently being released on recognizance pending the determination of his claim. 

2.  The Applicant was born and raised in Gumtala Garhu, Pehowa City, Kurukshetra, Haryana, India. After leaving school he assisted his father in farming on his father’s land in their home village which was later leased to his uncle for rent, and in 2009 he went to Malaysia where he worked as an electrician.   

3.  Upon his father’s death in 2013, the Applicant returned to his home village to inherit his father’s land, but in July 2016 when he and his mother came to his uncle’s home to collect rent for the land, his uncle was not willing to recognize the Applicant’s title in the land and refused to hand over the rent to the Applicant which led to a quarrel between them, during which his uncle made threats against him and turned them away.

4.  Several days later his uncle came to the Applicant’s home and tried to attack him with a knife, but the Applicant managed to make his escape during which he injured his right knee which required medical treatment.

5.  After the attempted attack by his uncle, the Applicant became fearful for his life and fled to Ambala to take shelter in his sister’s place, and later in August 2016 he departed India for Thailand and China before travelling to Hong Kong on 26 August 2016 where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 24 February 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 23 March 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 and non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) 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 risk of harm from his uncle upon return to India as low due to the low intensity and frequency of past ill-treatment from his uncle, that in any event it was a private family dispute over land in his home village 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 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 his uncle to locate him.  

8.  On 3 April 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 October 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 28 December 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board found significant inconsistencies discrepancies and contradictions in the Applicant’s evidence that it considered him not a witness of truth and doubted the credibility of his claim or that his father is actually deceased or that there has been any dispute over his father’s land or its rent with his uncle or anyone or that he had been attacked as a result of such dispute that caused him to flee from his country to come to Hong Kong for protection, and that it concluded that he failed to establish his non-refoulement claim under all the applicable grounds.

10.  On 17 January 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he stated that he stated as follows:

                “I am seeking JR on this claim based on these factors but not limited to only these below.

                According to the guidelines of USM assessment, all claimants is to be given legal assistance free of charge or allowed enough time to seek private legal advice if they afford it. Contrary to this rule I had no legal assistance during and prior to the appeal process and submission of my claim. So this is a matter of my life and I wish to consideration of my case on high priority. This affected the presentation of my claim and even though the ImmD is aware of their responsibility to this affect but they either ignored it intentionally or unconsciously which meant that I was never given a fair assessment because I am a foreign national with no direct family here in Hong Kong and can neither nor write English or Cantonese.”     

11.  For his complaint of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standard 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.

12.  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 raised of his claim by the Adjudicator without difficulty and with the assistance of an interpreter of which the Applicant confirmed of no problem to the Board, nor did he make any elaboration at the hearing of his application of any prejudice which he might have suffered due to lack of legal representation for his appeal to the Board regarding his non-refoulement claim. As such I do not find anything amiss arising from the lack of legal representation in his appeal process, nor do I find this ground reasonably arguable for his intended challenge.

13.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where 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 risk of harm is primarily a matter for them 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.

14.  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 43 – 57 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim during his appeal hearing before the Board, 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.

15.  Furthermore, the fact is that it has also been correctly established by the Director in his decisions 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, 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.               

16.  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.

17.  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