SAINI SAHILVIR SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 1574/2020

[2023] HKCFI 9

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1574 of 2020

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 33-year-old national of India who arrived in Hong Kong on 20 September 2010 as a visitor with permission to remain up to 4 October 2010 when he did not depart and instead overstayed, and was arrested by police on 11 December 2010. After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his brother over some family disputes between them. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Terkiana, Hoshiarpur, Punjab, India. After leaving school he worked in his own clothing business, but after his parents passed away in 2002 leaving behind some properties in their estate for the Applicant and his elder brother who however raised issue over the sharing of the estate that led to threats being made against the Applicant, and to avoid such threats the Applicant in 2004 moved to stay in his aunt’s house in Khun Khun, Kalan, Tanda.

3.  In 2008 the Applicant returned to his home village believing it would be safe to do so, but soon he encountered his brother who again demanded that he gave up his share in their parents’ estate, and when the Applicant refused, his brother attacked him with some other men with wooden sticks.

4.  After several such further violent encounters with his brother, the Applicant felt it was no longer safe to remain in India, and so on 20 September 2010 he departed for 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 10 December 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 16 February 2015 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 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”).

6.  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 brother and his followers 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, that in any event it was a private family dispute between the Applicant and his brother 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 the country away from his home district in large cities such as Delhi where it would be difficult if not impossible for his brother to locate him.

7.  On 4 March 2015 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 4 July 2016 before the Board during which he gave oral evidence and answered questions raised of his claim by the Adjudicator for the Board. On 4 May 2017 his appeal was dismissed by eth Board which also confirmed the Director’s decision.

8.  In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence that it doubted his claim of fear harm from his elder brother that caused him to leave his country for Hong Kong, and that in any event it was a private personal dispute between 2 brothers within the family without any official involvement that state/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 by his brother that his claim for non-refoulement protection failed on all applicable grounds.

9.  Meanwhile on 8 May 2017 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 additional facts or information from the Applicant other than a regurgitation of his claim as before, the Director by a Notice of Further Decision dated 8 September 2017 also rejected his BOR 2 Claim upon finding that the facts of his case did not engage the BOR 2 grounds and concluded that he had failed to establish a personal and real risk of being arbitrary deprived of his life in violation of BOR 2 upon his return to India.

10.  The Applicant did not lodge any appeal to the Board against this further decision of the Director, and some 3 years later on 28 July 2020 he filed a 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, and in his supporting affirmation of the same date he just stated that he rejects the decision as it disregarded his dangerous situation without providing any details or particulars or elaborations as to how it did so, nor did he request any oral hearing for his application.

11.  By then the Applicant was also 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 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.

12.  As the Last day of the three-month period for him to file his Form 86 fell on 4 August 2017, the Applicant was therefore some 3 years 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.

13.  In the Applicant’s case, a delay of 3 years must be considered as extremely substantial and inordinate, for which the Applicant failed to provide any explanation, and as the record shows that the decision was sent on the same day to his then reported address without being returned through undelivered post, I am unable to see any good reason for his such serious delay.

14.  As for the merits, if any, of his intended application, as noted above the Applicant has also failed to put forward any proper ground for his intended challenge, 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 merits in his intended application either.

15.  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.

16.  In the Applicant’s case, the fact is that it has been correctly established by both the Director and the Board in their respective 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.

17.  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.

18.  Furthermore, the Applicant recently on 19 September 2022 filed an affirmation requesting to withdraw his application as it is now safe for him to return to his home country.

19.  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 for his serious delay, and given his latest confirmation that it is safe for him 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