GURMUKH SINGH v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 3650/2019

[2022] HKCFI 3208

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo 3650 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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 38-year-old national of India who arrived in Hong Kong on 12 June 2015 as a visitor with permission to remain up to 14 June 2015 when he did not depart and instead overstayed, and was arrested by police 3 months later on 14 September 2015. 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 in-laws over his matrimonial disputes with his wife and/or by the local Hindu villagers over some religious dispute in his home district. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised as a Sikh in Phul Town, Bathinda District, Punjab, India. After leaving school he worked for a Sikh religious group promoting the Sikh religion and sacred songs and teachings, and also worked as a religious singer in a Sikh temple, and married his wife and raised a family with a son in his home district.

3.  One day in 2011 while he was on his way home from work, he ran into a group of Hindu men who appeared to be drunk that they insulted the Applicant with foul language, and when they tried to attack him, the Applicant managed to flee from the scene.

4.  Afterwards the Applicant reported the incident to members of the Sikh temple who then made a complaint to the local magistrate, but on the same evening some Hindu villagers started to gather outside his home shouting threats against him, and although the dispute was later resolved by the local magistrate with a peaceful settlement, the Applicant did not feel safe anymore living amongst the local Hindu villagers.

5.  At the same time his relationship with his wife started to deteriorate resulting in frequent disputes between them that in 2012 his wife left him to move back to her parents’ home, and soon she made complaints to the court that required the Applicant to attend various court hearings during which he was ordered to pay maintenance for his wife and son, and when he failed to do so, he was then put in prison for a month.

6.  Upon his subsequent release, the Applicant was told by his brother that he heard that the Applicant’s in-laws had hired some local gangsters to murder him, of which the Applicant later reported to the police, but before the police could conduct any investigation, his in-laws had gone into hiding and disappeared.

7.  As he still feared of further attempts on his life by his in-laws, and as he also did not feel safe living amongst the local Hindu villagers, the Applicant therefore left his home district to stay in a friend’s place in Pathrala before travelling to Delhi, and from there he departed India on 8 June 2015 and eventually travelled to Hong Kong where he subsequently overstayed, and after his arrest by the police, he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 5 June 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

8.  By a Notice of Decision dated 21 June 2017 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), 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 found no substantial grounds for believing that he would be in danger of being harmed or killed by his in-laws or the local Hindu villagers upon his return to India due to the absence of or 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, that his problem with the local Hindu villagers had already been peacefully resolved while his problems with his wife and in-laws were private domestic disputes 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 that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of the country away from his home district in large cities such as Delhi where it would be difficult if not impossible for anyone to locate him.

10.  On 26 June 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but before it could be dealt with by the Board, the Applicant by a letter dated 18 July 2018 applied to withdraw his appeal/petition as he wanted to return to his home country, and having regard to all the available information before it and upon being satisfied that the Applicant’s request to withdraw his appeal/petition was freely sought, that he understood the consequences of the withdrawal, and that he had good reason for his proposed withdrawal which was to return to his home country, the Board by a Notice of Decision dated 24 July 2018 directed that the Applicant’s appeal/petition be withdrawn and confirmed the Director’s decision.

11.  However, more than one year later on 9 December 2019 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 when the Board allowed the Applicant to withdraw his appeal due to change of situation in his home country, it was wrong for the Board to also confirm the Director’s decision as the Director reached his decision wrongly in assessing the Applicant’s non-refoulement claim;

(2)  That the Director’s decision was not fair or reasonable as required by the Wednesbury test as the Applicant’s right to life must be protected by the criminal law from extra-judicial killings that he may face if deported back to his home country;

(3)  That the Director failed to appreciate or give proper weight or importance to the presence of state acquiescence in the Applicant’s case which led to an unfair outcome of rejecting his non-refoulement claim as he was tortured at the behest of the state law enforcement agencies and the politicians that the state would be rendered liable to the Applicant by cause of the state and its public officials failed to provide reasonable protection for its citizens under the duty of due diligence;

(4)  That the Adjudicator acted unreasonable and procedurally unfair by confirming the Director’s decision and failed to take his personal background and experience into account;

(5)  That the Director had listed relevant COI which supported the Applicant’s aversions that the police in his home country would not be able to protect and the Director failed to consider or give enough weight to that evidence and ruled otherwise which was a clear case of unfair attitude shown by the director which in itself is enough to render his decision void; and

(6)  That the Director failed to attain high standards of fairness required by the Wednesbury test in the decision by failing to take into account of the Applicant’s argument that corruption and incompetency of the administration in the Applicant’s home country is still a very serious problem as various human rights organizations have compiled reports which stated testament to the Applicant’s assertions.

12.  By then the Applicant was however seriously out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day 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 made.

13.  As the last day of the three-month period for him to file his Form 86 fell on 24 October 2018, the Applicant was therefore more than one year 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 more than one year must be considered as extremely substantial and inordinate, for which he did not provide any explanation in his Form or supporting affirmation, and as the record shows that the decision was sent on the same day to his last reported address without being returned through undelivered post, I do not see any good or valid reason for his such serious delay.

15.  As for the merits, if any, of the Applicant’s intended application to challenge the Board’s decision which dismissed his appeal upon his own request for its withdrawal as he wanted to return to his home country, unless there is any suggestion that such withdrawal was not validly given, I do not see any reasonably arguable basis to challenge the decision of the Board.

16.  In Re Das Purnima Rani [2019] HKCA 669, where the facts are similar, and that the applicant having made a deliberate and informed decision to withdraw her appeal applied to re-instate or reopen it, the Court of Appeal held that any subsequent change of mind of the applicant cannot invalidate the earlier valid withdrawal of the appeal before the Board, as Lisa Wong J elaborated in the judgment at paragraph 41:

“Once the Board dismisses an appeal against the Director’s refusal of a non-refoulement claim upon a valid withdrawal or abandonment of the appeal by the claimant, in the sense of being the result of a deliberate and informed decision, the appeal is no longer extant and the Board becomes functus officio with no jurisdiction to take any step regarding the appeal. As analysed by DHCJ Yee at [36]-[40] and [47]-[48], s 37V(2)(b) of the Ordinance stipulates that a torture claim rejected by the Director is finally determined when the appeal against it, if one were lodged, was disposed of. Notwithstanding the lack of determination on the merits, the dismissal of an appeal on its withdrawal nevertheless disposed of the appeal. Otherwise, not only would there be no finality in the determination of such claims, much room would be created for abuse by claimants desirous of delaying their removal from Hong Kong by making last minute withdrawals and then subsequently applying for reinstatement of the appeals.”

17.  In his written request dated 18 July 2018 to withdraw his appeal/petition, the Applicant stated as follows:

“Notice for Withdrawal/Abandonment of Appeal/Petition

I Gurmukh Singh … withdraw my appeal/petition.

The reason for my withdrawal is/are India.

I understand that my withdrawal my appeal/petition, the decision which I had

appealed and petitioned against will remain in force. I understand this is a final disposal of my appeal and petition before the Torture Claims Appeal Board and Non-refoulement Claims Petition Office.”

18.  It was upon such written confirmations that the Board declared itself satisfied that the Applicant had validly withdrawn his appeal as a result of a deliberate and informed decision on his part. As such and in the absence of any evidence to the contrary either in his Form or affirmation or proposed grounds, and as noted above that Section 37V(2)(b) of the Ordinance stipulates that a non-refoulement claim rejected by the Director is finally determined when the appeal against it has been disposed of, the Board was therefore entitled in the circumstances to confirm the Director’s decision as provided by the Petition Guide dated 12 September 2016 (see [22.1]). As such I do not find any merits in the Applicant’s intended application to challenge the Board’s decision.

19.  As for his intended challenge of the Director’s decision, the Applicant’s proposed grounds as listed above all are just broad and vague assertions containing a few key words or phrases but without any particulars or specifics or elaborations as to how they would apply to his case or how the Director had erred in the decision, or in what way did the Director fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy would state acquiescence or extra-judicial killings or police corruption be to the Applicant’s claim which on the factual basis of his own case at the highest involved some private or domestic disputes without any state or official involvement and was confined within the locality of his home district that any risk arising therefrom, as correctly found by the Director, would be wholly negated by the availability of state/police protection and internal relocation to the Applicant upon his return to India. As such I do not find any of these grounds reasonably arguable for his intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Director, during which he was legally represented by DLS, or in its decision being clearly and properly identified by the Applicant, I do not find any merits in his intended application to challenge the Director’s decision either.

20.  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.

21.  In the Applicant’s case, the fact is that it has been correctly established by the Director in his decision that the risk of harm in his 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.

22.  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 the Director’s consideration and assessment of the Applicant’s claim or in the Board’s decision to withdraw/dismiss his appeal/petition at his own request.

23.  Furthermore, the Applicant recently on 1 September 2022 filed an affirmation requesting to withdraw his application as he has no problem returning to his home country.

24.  In the premises, as I am for the reasons given 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 to extend time, and given his latest confirmation that he has no problem to return to his home country, I 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