LAKHVIR SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 1367/2018

[2022] HKCFI 916

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1367 of 2018

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 38-year-old national of India who arrived in Hong Kong on 1 January 2015 but when he was refused entry by the Immigration Department, he 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 in his home village. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Golewala, District Faridkot, Punjab, India. After leaving school he assisted his father to farm on his father’s farmland in his home village, got married and raised a family with 3 children.

3.  In 2014 his father distributed his farmland amongst the Applicant and his brothers, with the shares of his brothers subsequently sold, but the Applicant had kept his share on which he continued to farm.

4.  One day his paternal uncle came to the Applicant proposing to purchase his farmland, but when the Applicant refused, his uncle threatened that he would take the land by force.

5.  Shortly thereafter in June 2014, his uncle returned with other men and beat the Applicant with wooden sticks that he suffered cuts and bruises all over his body until they were restrained by other villagers and eventually left.

6.  After the assault the Applicant became fearful for his safety, and when his uncle continued to make threats against him, the Applicant fled from his home village to Sarsa City to take shelter in a friend’s place, and on 1 January 2015 he departed India for Hong Kong, and when he was refused entry by the Immigration Department, he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 30 January 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

7.  By a Notice of Decision dated 24 March 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”).

8.  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 and his men upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that there was no real intention of his uncle to seriously harm or kill the Applicant other than to put pressure on him to sell his land, that in any event it was a private personal 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”) 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 India 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.

9.  On 16 November 2016 the Director on his own initiative invited the Applicant to submit any 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 him, the Director by a Notice of Further Decision dated 2 December 2016 also rejected the Applicant’s BOR 2 Claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR including right to life under BOR 2 being violated upon his return to India.

10.  By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“Board”) against the earlier decision of the Director, the notice of appeal which was filed on 15 April 2015, and for which he attended an oral hearing on 30 August 2017 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 6 July 2018 his appeal was dismissed by the Board which also confirmed both decisions of the Director.

11.  In its decision the Board accepted the Applicant’s evidence as to his claim of dispute with his uncle over his farmland in his home village, but found in the absence of any official involvement that it was just a private personal dispute between them that state/police protection would be available to the Applicant upon his return to India if needed, as well as reasonable internal relocation for him to move safely to other area away from his home district without any risk of being located by his uncle that his claim for non-refoulement protection failed on all applicable grounds.  

12.  On 12 July 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1)   Procedural unfairness in that the Board unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirement;

(2)   Procedural unfairness in that the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(3)   Procedural unfairness in that the Board’s decision to refuse the Applicant’s appeal was unreasonable and irrational in the public law sense or the result of procedural errors or unfairness;

(4)   Procedural unfairness in that the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5)   That the Board relied significantly on source of news that were not officially recognized or were simply hearsay or outdated considering the dramatic changes resulted in making groundless speculations that it would be safe for the Applicant to return to his home country; and

(6)   That the Applicant was given the hearing bundle only six days before the appeal hearing with the majority of the documents in English thereby giving him insufficient time to prepare for the hearing especially due to his limited skills in English that led to an unfair hearing for his appeal before the Board.  

13.  These are however all just broad and vague assertions of the Applicant containing a few key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the Adjudicator had erred in the decision, or in what way did the Board unlawfully fetter its discretion or act in a procedurally unfair manner or that its decision was unreasonable or irrational in the public law sense, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or which COI were unofficially recognized or were hearsay or outdated. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, 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 of them reasonably arguable 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.  The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided to him only a few days before his appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby giving him insufficient time to prepare for his appeal.

16.  Even if it is true that the hearing bundle indeed came to him late as alleged, and the Applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his NCF, records of his screening interviews and the Director’s decisions should be well familiar to the Applicant as they had earlier all been made available to him when he still had legal representation from DLS, whilst his NCF was completed on his own instructions with legal assistance, and that at his oral hearing he never raised any issue or requested the Adjudicator for further time to enable him to better prepare for his appeal.  Accordingly, I do not find anything amiss arising from the hearing bundle for the Applicant in his appeal before the Board or that this ground is reasonably arguable either.

17.  Furthermore, the fact is that it has been established by both the Director and the Board in their respective 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.                

18.  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.

19.  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