AMANJEET SINGH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 1191/2018

[2019] HKCFI 2473

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1191 of 2018

 Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 25-year-old national of India who entered Hong Kong illegally on 10 January 2016 and was subsequently arrested by the police.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his girlfriend’s family who opposed their relationship.  He was subsequently released on recognizance pending the determination of his claim. 

2.  The Applicant was born and raised into a Sikh family in Village Akbarpur, District Gurdaspur, Punjab, India.  After leaving school he worked as a farmer in his family’s farmland in the village.

3.  In March 2015 he started dating a girl from a wealthy Hindu family in the same village, but in July 2015 when his girlfriend became pregnant with their child and disclosed their relationship to her family, her parents became furious and objected to her having any relationship with someone who was not a Hindu, and demanded that she stopped seeing the Applicant.

4.  Several days later the father and brothers of his girlfriend came to the Applicant armed with knives and baseball bats and demanded that he ceased his relationship with his girlfriend or else they would kill him.

5.  On the same evening they came to the Applicant’s home, and as the Applicant was not at home, they threatened his parents that if they saw the Applicant they would kill him.

6.  Later when the Applicant returned home, he was advised by his parents that he should leave India to save his life, and although he had no further encounter with his girlfriend’s family, he nevertheless departed India on 30 October 2015 for China, and from there he later sneaked into Hong Kong in January 2016, and upon his arrest he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 26 May 2016, but failed to attend the scheduled screening interview before the Immigration Department due to skin irritation, and in lieu he in writing answered a list of questions from an immigration officer with legal assistance from the Duty Lawyer Service (“DLS”).

7.  By a Notice of Decision dated 18 July 2016 the Director of Immigration (“the 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 (“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 all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his girlfriend’s family upon his return to India as low due to the absence or low intensity and frequency of past ill-treatment from them, that his problem with them was a private personal dispute without any official involvement that state 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 2.9 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied young man with work experience to move to other area of India away from his home district in large cities such as Delhi where it would be difficult if not impossible for his girlfriend’s family to locate him. 

9.  By a Notice of Further Decision dated 11 July 2017 the Director again rejected the Applicant’s claim after receiving no response from him to an earlier invitation for him to submit additional facts which may be relevant to his 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”).

10.  By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 27 July 2016, and for which he attended an oral hearing on 25 April 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 12 June 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.  In its decision the Board accepted that the family of the Applicant’s girlfriend had disputes with the Applicant over their relationship but found no reliable or objective evidence to suggest any real intention on their part to seriously harm or kill him other than just trying to stop their relationship, and that it was a private personal dispute without any official involvement that both state protection and reasonable internal relocation would be available to the Applicant to move safely to other parts of India away from his home district that his non-refoulement claim for protection failed on all applicable grounds. 

12.  On 25 June 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

 (1) procedural unfairness for failing to provide him with screening interview before the Director for his non-refoulement claim;

 (2) procedural unfairness for failing to provide any hearing for his claim under BOR 2 risk before the Director;

 (3) procedural unfairness for failing to provide legal representation or assistance for his claim under BOR 2 risk or for his appeal before the Board; and

 (4) procedural unfairness in the Board’s failure to translate its decision to the Applicant. 

13.  For his complaint under Ground (1) of not being provided a further screening interview before the Immigration Department after having missed the first one due to a case of dermatitis for which he was given a one-day sick leave, the Director was in the circumstances entitled not to schedule a further screening interview so as to save time and in lieu requested him to answer in writing a list of questions in respect of his claim.  He was then legally represented by DLS and was able to answer those questions without any problem.  Given the nature of his claim as found by the Director, I do not find anything amiss arising from that situation, and that in any event in his subsequent appeal to the Board which was a rehearing of his claim, he did attend an oral hearing before the Board during which he was able to fully present and articulate his claim with the assistance of an interpreter.  In the circumstances I do not find this ground reasonably arguable for his intended application.

14.  As for Ground (2) in which he complains of not being given any hearing or interview before the Director for his claim under BOR 2 risk, as explained in the Director’s Further Decision, the Applicant did not respond to the invitation to submit additional facts which may be relevant to his claim under BOR 2 risk, and hence the Director did not find it necessary to schedule any interview, but nevertheless proceeded to access his claim under BOR 2 risk based on the materials already before it and correctly found that his claim even on his own case did not engage the BOR 2 risk, nor did the Applicant do so in his subsequent appeal before the Board or even in his application now before me.  As such I do not find any basis or merit in this complaint of the Applicant.

15.  As for his complaint in Ground (3) of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standards 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.

16.  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 put to him by the adjudicator without difficulty.  I do not find anything amiss arising from the lack of legal representation in his appeal process,and I do not think this ground is reasonably arguable.

17.  As for his complaint under Ground (4) of not being given any interpretation or translation of the Board’s decision, which even if true cannot by itself be considered as a proper or valid ground to challenge the decision.  As such I do not find it reasonably arguable for his intended application either.

18.  As has been repeatedly emphasized by the Court of Appeal, evaluation of risk of harm is primarily a matter for the Director and the Board 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 clearly and properly 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.

19.  The fact is that it has been established by both the Director and the Board in their decisions 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 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.

20.  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.

21.  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