HCAL574/2020 GURSEWAK SINGH v. TORTURE CLAIMS APPEAL BOARD - LawHero
HCAL574/2020
原訟法庭Deputy High Court Judge Bruno Chan25/1/2024[2024] HKCFI 308
HCAL574/2020
HCAL 574/2020
[2024] HKCFI 308
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 574 OF 2020
BETWEEN
Gursewak Singh Applicant
and
Torture Claims Appeal Board Putative Respondent
and
Director of Immigration Putative Interested Party
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 /
the Applicant being absent in open court;
Order by Deputy High Court Judge Bruno Chan:
Leave to apply for judicial review refused.
Observations for the Applicant:
1. The Applicant is a 49-year-old national of India who arrived in Hong Kong on
22 October 2010 as a visitor with permission to remain as such up to 5 November 2010
when he did not depart and instead overstayed, and was arrested by police more than
2 years later on 6 December 2012 for the offences of theft and possession of another
person’s identity card, for which he was subsequently convicted and sentenced to prison
for 12 months. After he was discharged from prison and was referred to the Immigration
Department for deportation, he raised a torture claim on the basis that if he returned to
India he would be harmed or killed by his 2 step-brothers over their land dispute, and after
it was rejected, he then sought non-refoulement protection on the same basis. He was
subsequently released on recognizance pending the determination of his claim.
2. The Applicant was born and raised in Village Gondhwal, District Ludhiana,
Punjab, India. After leaving school he farmed on his grandfather’s farmland in his home
village, got married and raised a family with 2 children.
3. In the late 1990s his father abandoned his mother and married another woman in
the village who subsequently gave birth to 2 sons who became the Applicant’s
step- brothers, much to the displeasure of his grandfather who then disowned his father.
1
4. In 2007 after his father suffered a heart-attack, his father asked his grandfather to
distribute the farmland between the Applicant and his step-brothers, but his grandfather
refused and instead gave all the farmland to the Applicant alone in his will with only a
discretion to give some of the farmland to his step-brothers if the Applicant so desired.
5. After his grandfather passed away in 2008, and that the Applicant inherited the
farmland, his step-brothers started to pester him to give them some share in the farmland,
and when the Applicant refused, they then threatened him and on one occasion together
with their men beat him with hockey sticks that the Applicant suffered cuts and bruises
all over his body and was subsequently taken by his neighbours to the local clinic for
medical treatments.
6. To avoid further threats from his step-brothers, the Applicant in May 2008 went
to Doha in Qatar to work until September 2010 when he returned to his home village in
India.
7. However, shortly thereafter the Applicant started to receive threatening phone
calls from his step-brothers that they would kill him if he still refused to give them some
of the farmland, he then became fearful for his life and fled to Patiala City to take shelter
in a friend’s place, and on 22 October 2010 he departed India for Hong Kong where he
subsequently overstayed, and upon his arrest by the police he raised his torture claim, and
after it was rejected he then sought non-refoulement protection, for which he completed a
Supplementary Claim Form (“SCF”) on 12 April 2018 and attended screening interview
before the Immigration Department with legal representation from the Duty Lawyer
Service (“DLS”).
8. By a Notice of Decision dated 17 May 2018 the Director of Immigration
(“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other
than torture risk including 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”).
9. In his decision the Director took into account of all the relevant circumstances of
the Applicant’s claim and assessed the level of him being harmed or killed by his step-
brothers over their land dispute upon his return to India as low due to the low intensity
and frequency of past ill-treatment from them, that there is no evidence of any real
intention of them to seriously harm or kill him other than to press him to yield to their
demand for some of the farmland, that in any event it was a private land dispute between
them within the family 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 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 areas of the
country away from his home district in large cities such as Delhi where it would be
difficult if not impossible for his step-brothers to locate him.
10. On 28 May 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 17 January 2020 before the Board during which he gave evidence and answered
questions raised of his claim by the Adjudicator for the Board. On 26 March 2020 his
appeal was dismissed by the Board which also confirmed the Director’s decision.
2
11. In its decision the Board accepted the Applicant’s claim of threats from his
step- brothers over their land dispute but found no reliable evidence of any real intention
of them to seriously harm or kill him, and that in any event it was a private land dispute
between them within the family without any official involvement that state or police
protection would be available to the Applicant upon his return to India as well as
reasonable internal relocation for him to move safely to other part of the country away
from his home district without any risk of being located that his claim for non-refoulement
protection failed on all applicable grounds.
12. On 9 April 2020 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 or
in his supporting affirmation of the same date in which he just repeated his claim that his
life is still at risk that he cannot return to his home country, 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.
13. 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.
14. In the Applicant’s case, the fact is that it has also been correctly established by
both the Director and the Board in their respective decision that the risk of harm in his
claim if real 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.
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 the reasons given I am not satisfied that there is any prospect of success in the
Applicant’s intended application for judicial review, I therefore refuse to grant leave and
accordingly dismiss his leave application.
Dated the 26th day of January 2024
(Chung Lai Fan, Christine)
for Registrar, High Court
3
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
Notes for the Applicant:
If leave has been granted,
the Applicant or the
Applicant’s solicitors
must:
a) serve on the respondent Sent to the Applicant Sent to the Putative Respondent /
and such interested on 26 January 2024 the Putative Respondent’s
parties as may be solicitors / such Putative
directed by the Court the Gursewak Singh Interested Parties as may be
order granting leave and directed by the Court / the
any directions given Applicant’s ref. no.: Putative Interested Parties’
within 14 days after the Nil. solicitors on 26 January 2024
leave was granted
(Order 53, rule 4A); Torture Claims Appeal Board
Putative Respondent’s ref. no.:
b) issue the originating USM 11752/18/5/337/IN2347
summons within 14 days
after the grant of leave Director of Immigration
and serve it in Putative Interested Party’s ref. no.:
accordance with Order QA T/C 954/18 (Formerly
53, rule 5; and RBCZ 2001730/14)
c) supply to every other Department of Justice,
party copies of every Senior Assistant Law Officer
affidavit which the (Civil Law)
Applicant proposes to (Civil Litigation Unit 2)
use at the hearing,
including the affidavit in
support of the
application for leave
(Order 53, rule 6(5)).
____________________________________________________________________________
Form CALL-1
4
HCAL 574/2020
[2024] HKCFI 308
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 574 OF 2020
BETWEEN
Gursewak Singh Applicant
and
Torture Claims Appeal Board Putative Respondent
and
Director of Immigration Putative Interested Party
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 /
the Applicant being absent in open court;
Order by Deputy High Court Judge Bruno Chan:
Leave to apply for judicial review refused.
Observations for the Applicant:
1. The Applicant is a 49-year-old national of India who arrived in Hong Kong on
22 October 2010 as a visitor with permission to remain as such up to 5 November 2010
when he did not depart and instead overstayed, and was arrested by police more than
2 years later on 6 December 2012 for the offences of theft and possession of another
person’s identity card, for which he was subsequently convicted and sentenced to prison
for 12 months. After he was discharged from prison and was referred to the Immigration
Department for deportation, he raised a torture claim on the basis that if he returned to
India he would be harmed or killed by his 2 step-brothers over their land dispute, and after
it was rejected, he then sought non-refoulement protection on the same basis. He was
subsequently released on recognizance pending the determination of his claim.
2. The Applicant was born and raised in Village Gondhwal, District Ludhiana,
Punjab, India. After leaving school he farmed on his grandfather’s farmland in his home
village, got married and raised a family with 2 children.
3. In the late 1990s his father abandoned his mother and married another woman in
the village who subsequently gave birth to 2 sons who became the Applicant’s
step- brothers, much to the displeasure of his grandfather who then disowned his father.
1
4. In 2007 after his father suffered a heart-attack, his father asked his grandfather to
distribute the farmland between the Applicant and his step-brothers, but his grandfather
refused and instead gave all the farmland to the Applicant alone in his will with only a
discretion to give some of the farmland to his step-brothers if the Applicant so desired.
5. After his grandfather passed away in 2008, and that the Applicant inherited the
farmland, his step-brothers started to pester him to give them some share in the farmland,
and when the Applicant refused, they then threatened him and on one occasion together
with their men beat him with hockey sticks that the Applicant suffered cuts and bruises
all over his body and was subsequently taken by his neighbours to the local clinic for
medical treatments.
6. To avoid further threats from his step-brothers, the Applicant in May 2008 went
to Doha in Qatar to work until September 2010 when he returned to his home village in
India.
7. However, shortly thereafter the Applicant started to receive threatening phone
calls from his step-brothers that they would kill him if he still refused to give them some
of the farmland, he then became fearful for his life and fled to Patiala City to take shelter
in a friend’s place, and on 22 October 2010 he departed India for Hong Kong where he
subsequently overstayed, and upon his arrest by the police he raised his torture claim, and
after it was rejected he then sought non-refoulement protection, for which he completed a
Supplementary Claim Form (“SCF”) on 12 April 2018 and attended screening interview
before the Immigration Department with legal representation from the Duty Lawyer
Service (“DLS”).
8. By a Notice of Decision dated 17 May 2018 the Director of Immigration
(“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other
than torture risk including 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”).
9. In his decision the Director took into account of all the relevant circumstances of
the Applicant’s claim and assessed the level of him being harmed or killed by his step-
brothers over their land dispute upon his return to India as low due to the low intensity
and frequency of past ill-treatment from them, that there is no evidence of any real
intention of them to seriously harm or kill him other than to press him to yield to their
demand for some of the farmland, that in any event it was a private land dispute between
them within the family 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 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 areas of the
country away from his home district in large cities such as Delhi where it would be
difficult if not impossible for his step-brothers to locate him.
10. On 28 May 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 17 January 2020 before the Board during which he gave evidence and answered
questions raised of his claim by the Adjudicator for the Board. On 26 March 2020 his
appeal was dismissed by the Board which also confirmed the Director’s decision.
2
11. In its decision the Board accepted the Applicant’s claim of threats from his
step- brothers over their land dispute but found no reliable evidence of any real intention
of them to seriously harm or kill him, and that in any event it was a private land dispute
between them within the family without any official involvement that state or police
protection would be available to the Applicant upon his return to India as well as
reasonable internal relocation for him to move safely to other part of the country away
from his home district without any risk of being located that his claim for non-refoulement
protection failed on all applicable grounds.
12. On 9 April 2020 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 or
in his supporting affirmation of the same date in which he just repeated his claim that his
life is still at risk that he cannot return to his home country, 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.
13. 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.
14. In the Applicant’s case, the fact is that it has also been correctly established by
both the Director and the Board in their respective decision that the risk of harm in his
claim if real 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.
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 the reasons given I am not satisfied that there is any prospect of success in the
Applicant’s intended application for judicial review, I therefore refuse to grant leave and
accordingly dismiss his leave application.
Dated the 26th day of January 2024
(Chung Lai Fan, Christine)
for Registrar, High Court
3
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
Notes for the Applicant:
If leave has been granted,
the Applicant or the
Applicant’s solicitors
must:
a) serve on the respondent Sent to the Applicant Sent to the Putative Respondent /
and such interested on 26 January 2024 the Putative Respondent’s
parties as may be solicitors / such Putative
directed by the Court the Gursewak Singh Interested Parties as may be
order granting leave and directed by the Court / the
any directions given Applicant’s ref. no.: Putative Interested Parties’
within 14 days after the Nil. solicitors on 26 January 2024
leave was granted
(Order 53, rule 4A); Torture Claims Appeal Board
Putative Respondent’s ref. no.:
b) issue the originating USM 11752/18/5/337/IN2347
summons within 14 days
after the grant of leave Director of Immigration
and serve it in Putative Interested Party’s ref. no.:
accordance with Order QA T/C 954/18 (Formerly
53, rule 5; and RBCZ 2001730/14)
c) supply to every other Department of Justice,
party copies of every Senior Assistant Law Officer
affidavit which the (Civil Law)
Applicant proposes to (Civil Litigation Unit 2)
use at the hearing,
including the affidavit in
support of the
application for leave
(Order 53, rule 6(5)).
____________________________________________________________________________
Form CALL-1
4