ROSHAN SINGH v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 2022/2018

[2020] HKCFI 2344

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2022 of 2018

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

1.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 26 May 2017 refused; and

2.  the application for leave to apply for Judicial Review dismissed.

Observations for the Applicant:

1.  The Applicant is a 28-year-old national of India who arrived in Hong Kong on      24 December 2012 with permission to remain as a visitor up to 7 January 2013 when he did not depart and instead overstayed and was arrested by police on 12 September 2013.  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 certain local supporters of rival political party Shiromani Akali Dal (“SAD”).  He was subsequently released on recognizance pending the determination of his claim.

2.   The Applicant was born and raised in Village Suchetgarh, Tehsil, District Gurdaspur, Punjab, India.  After leaving school he worked as a farmer in his home village, and followed his family’s tradition to become a supporter of the political party Indian National Congress Party (“INC”) regularly attended their local rallies and meetings and assisted by putting up their banners and posters in the village.

3.  Given that SAD also had many supporters in the village, the Applicant and his fellow INC supporters would frequently come into conflicts with them.  On one occasion in June 2010 when the Applicant and his father were on their way home from the village market, they ran into several local SAD supporters who appeared drunk and started to verbally abuse them for supporting INC, and then proceeded to beat them with bricks and sticks until they were restrained by other villagers who then took the Applicant and his father to the local hospital for medical treatments.

4.  Upon discharge from the hospital, the Applicant and his father returned home to rest, but several weeks later one day his father collapsed and died on his way to the hospital, of which the Applicant believed was the result of the earlier attack by those SAD supporters, and to avoid further such harassments the Applicant went to work in Dubai as an electrical assistant for 2 years before returning to India in October 2012.

5.  However, one day in November 2012 when he ran into the same group of SAD supporters who threatened that soon he would meet the same fate as his father, the Applicant became fearful for his life, and therefore fled to Amritsar to take shelter at a friend’s place, but as he felt it was no longer safe to remain in India, he therefore  departed on 23 December 2012 for Hong Kong where he subsequently overstayed, and upon his arrest by the police in September 2013, he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on  2 September 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.  By a Notice of Decision dated 20 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 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”).

7.  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 those local SAD supporters upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that conflicts between supporters of rival political parties were common and that it is doubtful that those SAD supporters would still have any adverse interest in the Applicant after all these years, that in any event in the absence of 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 Mumbai where it would be difficult if not impossible for those SAD supporters to locate him.

8.  By a Notice of Further Decision dated 7 April 2017 the Director again rejected the Applicant’s claim in the absence of any response from him to an earlier invitation 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”).

9.  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 26 July 2016, and for which he attended an oral hearing on 18 May 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 26 May 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.  In its decision the Board accepted the Applicant’s claim of being a supporter of INC at that time but found inconsistencies and discrepancies in his evidence of being threatened and harassed by those local SAD supporters that it did not accept his claimed fear of harm from them upon his return to India, and that any such risk would be further reduced or negated by the fact that he was no longer a supporter of INC that there would be no further reason for those SAD supporters to have any interest in him after all these years that his claim for non-refoulement protection failed on all applicable grounds.    

11.  On 24 September 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 put forward the following grounds for his intended challenge:

(1) that the Director and the adjudicator reached their decisions wrongly as unfair or unreasonable in assessing the Applicant’s non-refoulement claim;

(2) that the adjudicator failed to give the Applicant sufficient time and chance to arrange relevant evidence for his claim as well as his appeal;

(3) that the director failed to appreciate or give proper importance or weight to the presence of state acquiescence in the Applicant’s case which led to an unfair outcome of rejecting his claim;

(4) that the Director failed to take into account of the fact that the Applicant was tortured at the behest of the state law enforcement agencies and politicians for which the state would be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(5) that the Director failed to consider or give enough weight to those listed relevant COI which supported the Applicant’s aversions that the police in his country would not be able to protect;

(6) that the Director failed to recognize that corruption and incompetency of the administration in the Applicant’s country were serious problems as reported by various human rights organizations which stated testament to the Applicant’s assertions which was a clear case of unfair attitude shown by the Director which in itself is enough to render his decision void; and

(7) that the Director failed to attain high standard of fairness required by the Wednesbury test in his decision which should be considered unreasonable in the scope of public law.  

12.  The Applicant was however by then seriously out of time with his application, as Order 53 rule 4(1) of the High Court Ordinance, Cap 4 requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be filed.

13.  As the last day of the three-month period for him to file his Form 86 fell on 26 August 2017, the Applicant was therefore 13 months late with his application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393. 

14.  In the Applicant’s case, a delay of 13 months must be considered very substantial and excessive, for which he was unable to provide any explanation in his affirmation or at the hearing of his application, and as the record shows that the decision was sent on the same day to his last known address without being returned through undelivered mail, I do not see any good reason for his serious delay.    

15.  As for the merits, if any, of his intended application, those grounds as stated above are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the adjudicator had erred in their decisions, or in what way were their decisions unfair or unreasonable, or what relevancy was state acquiescence to his claim, or how did they fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or how did the adjudicator fail to give him sufficient time or opportunity to submit his relevant evidence for his claim or appeal, or that he fail to apply high standards of fairness in assessing his claim.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge.

16.  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.

17.  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 24 – 40 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.  

18.  Furthermore, the fact is that it has been established by the Director in his 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 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.     

19.  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.

20.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, I refuse to extend time and accordingly dismiss 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