MANJIT SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 531/2019

[2021] HKCFI 1568

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 531 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;

1.  the application for leave to apply for Judicial Review be reinstated; and

2.  leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 51-year-old national of India who arrived in Hong Kong on 11 April 2010 with permission to remain as a visitor up to 25 April 2010 when he did not depart and instead overstayed and was arrested by the police on 25 August 2010. After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his cousins over a land dispute in their home village. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Sokar, Mukandpur, District Nawanshahr, Punjab, India. After leaving school he ran a shop selling clothes and shoes in Mukandpur, married his wife and raised a family of 3 children.

3.  In about 2009 he had a dispute with his cousins over the boundary between his father’s farmland and that of his cousins which led to some serious quarrels between the two families, and after one incident when the Applicant was injured after being assaulted by his cousins which required medical treatment in the hospital, and afterwards when he heard that his cousins had made false charges against him to the police, he fled to City Hisar and later to New Delhi from where he subsequently departed India on 8 April 2010 for Bangkok, and on 11 April 2010 arrived in Hong Kong where he overstayed, and upon his arrest by the police, he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

4.  By a Notice of Decision dated 24 April 2015 the Director of Immigration (“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 Hong Kong Bill of Rights Ordinance, Cap 383 (“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 all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his cousins upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that it was a private family dispute between them 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”) shows 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 2.9 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 parts of India away from his home district in large cities such as Mumbai where it would be difficult if not impossible for his cousins to locate him.

6.  On 4 May 2015 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 23 May 2016 before the Board during which he however elected not to give further evidence for his claim. On 7 February 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision.

7.  In its decision the Board accepted the Applicant’s claim of threats from his cousins due to their dispute over his father’s farmland in their home district, but found in the absence of any official involvement that state or police protection would be available to him if needed upon his return to India as well as reasonable internal relocation for him to safely move to other areas away from his home district without any risk of being located by his cousins that his claim for non-refoulement protection failed on all applicable grounds.

8.  Meanwhile on 27 March 2017 the Director on his own initiative invited the Applicant to submit 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”). And in the absence of any response from the Applicant, the Director by a Notice of Further Decision dated 13 April 2017 rejected the Applicant claim under BOR 2 Risk.

9.  On 24 April 2017 the Applicant again lodged an appeal to the Board against this Further Decision of the Director, and for which he attended another oral hearing on 18 September 2018 before the Board during which he however disclosed that he had reached a compromise with his cousins to resolve their dispute, and that he no longer needed protection in Hong Kong. As a result the Board found no reason why the Applicant would face any risk of being subjected to BOR 2 ill-treatment upon his return to India, and accordingly by a decision dated 15 February 2019 it dismissed his appeal and confirmed the Director’s Further Decision. 

10.  However, on 25 February 2019 the Applicant filed his Form 86 for leave to apply for judicial review of this Second Decision of the Board, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely stated that he was not satisfied with the decision but without putting forth any proper ground for his intended challenge.

11.  Before his application could be dealt with by the court, the Applicant on 14 May 2020 filed an affirmation requesting to withdraw his application as he wanted to go back to his home country, and on 21 May 2020 his application was accordingly withdrawn.

12.  Some 7 months later on 11 January 2021 the Applicant however issued a summons for leave to “re-start” his leave application, and at the hearing of his summons the Applicant explained that after withdrawing his application in May 2020, he was later told by his family in India that his problem with his cousins has still not been solved, and so he requested to be allowed to proceed with his leave application.

13.  In order to save time and expenses, and as the merits of his application had never been formally dealt with, I granted leave for him to proceed with his application, but for which he was unable to put forth any proper ground for his intended challenge other than a mere regurgitation of his fear of being harmed or killed by his cousins over their land dispute in their home village. 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, and that on the facts of his claim and in the light of the scope and threshold of a BOR 2 claim, there is simply no room for engaging the BOR 2 ground, I do not find any reasonably arguable basis for his intended challenge.  

14.  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.

15.  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 is a localized one and that it is not unreasonable or unsafe for him to relocate to other parts 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.     

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