GHUMAN JAGTAR SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 399/2019

[2022] HKCFI 1866

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 399 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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 27-year-old national of India who arrived in Hong Kong on 8 November 2014 as a visitor with permission to remain up to 22 November 2014 when he did not depart and instead overstayed, and on 27 November 2014 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 uncle over a land dispute between his uncle and his father in their home village. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in a village in Nagra Tehsil, Sangrur Pin, Punjab, India. After leaving school he worked as a farmer on his father’s share of the farmland inherited from his grandfather between his father and his uncle.

3.  In 2013 his uncle sold some of his share of the farmland to the Applicant’s father, and on which the Applicant had since been farming, but later in September 2014 his uncle started to demand the Applicant’s father to return the land to him, which led to constant quarrels between the two families.

4.  One day while the Applicant and his father were working on the land, his uncle and son came with a tractor to try to drive them off which then led to a fight between the 4 of them during which the Applicant was injured in his hand which was bleeding profusely that his uncle and son immediately fled with their tractor, and that the Applicant was later taken to a medical clinic for treatment to his injury.

5.  One day on 1 November 2014 while the Applicant and his brother were working on the land, his uncle’s son again came to try to drive them away, which led to a scuffle between them during which his uncle’s son fell and struck his head against some farming machine that he suffered a serious head injury, whereupon the Applicant and his brother fled from the scene to hide in a friend’s place.

6.  Later when the Applicant heard that his uncle’s son had died from his head injury, and for which his uncle was looking to kill him in revenge, the Applicant became fearful for his life and fled to Chandigarh, and then to Delhi and eventually departed India on 6 November 2014 for Thailand before arriving in Hong Kong on 8 November 2014 where he overstayed and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 12 February 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  By a Notice of Decision dated 27 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 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”).

8.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real risk of him being harmed or killed by his uncle upon his return to India due to the low intensity and frequency of past ill-treatment from him, that there is no reliable evidence that his uncle’s son had in fact been killed over their land dispute or that the police were looking for him over the incident as he was able to leave the country without any problem, that it is not accepted that Applicant will face any risk of being harmed or ill-treated by the police or the authorities upon his return to India, that his problem with his uncle was a private land dispute between his uncle and his father 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 young man with working experience to move to other part of India away from his home district in large cities such as Delhi or Mumbai where it would be difficult if not impossible for his uncle to locate him.

9.  On 4 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 26 July 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 1 February 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.  In its decision the Board found inconsistencies, discrepancies and implausibility in the Applicant’s evidence that it did not consider him to be a witness of truth, that it was not satisfied he had told the truth as to why he left India or why he did not wish to return, and that there was no reliable evidence of the alleged death of his uncle’s son or that the Applicant had been threatened by his uncle that it was not accepted that he would face any such risk on his return to India or that he would be at risk of any of the proscribed harms upon his return to his home country that his claim for non-refoulement protection failed on all applicable grounds.

11.  On 12 February 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he just stated that he is not satisfied with the decision as his life is still not safe in his home country but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application. 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.

12.  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.

13.  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 – 90 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 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.

14.  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 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.

15.  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.

16.  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