PANNU GURPREET SINGH v. THE DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 1328/2018

[2020] HKCFI 90

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1328 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 24 November 2017 refused;and

2.  leave to apply for Judicial Review dismissed.

It is further directed that:

3.  if the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

4.  when filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

5.  the court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

6.  if the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

7.  liberty to apply.

Observations for the Applicant:

1. The Applicant is a 30-year-old national of India who entered Hong Kong illegally on 2 April 2015 and was arrested by police on the same day.  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 the head of his home village or his sons over certain personal disputes.  He was subsequently released on recognizance pending the determination of his claim.

2. The Applicant was born and raised in Lauka District, Tarn Taran, Punjab, India. After leaving school he worked in his family’s farmland right next to that of KS, the head of his home village.

3. One day in 2013 while he was working with his elder brother in his family’s farmland,the two sons of KS were also working on their father’s farmland when the Applicant got into a quarrel with them over the use of the irrigation water, which led to a fight between them during which the Applicant and his brother were hit with wooden sticks that they sustained some superficial injuries, but of which the Applicant did not make any report to the police.

4. However, one night in 2014 when he was on his way home, the Applicant ran into the two sons of KS who attacked him with knives and inflicted a deep cut to his right eyebrowbefore the Applicant managed to escape from the scene.

5. After receiving medical treatment in a hospital, the Applicant then reported the attack to the police, but when no police investigation appeared to have been taken, and when he later heard that one of his brothers was found dead on the road to the village with a head wound that he suspected that the sons of KS were responsible, he felt it was no longer safe to remain in India, and so he fled to Delhi where he stayed for several months to make arrangement to leave India, and on 26 December 2014 he departed for Hong Kong when he was refused entry and was repatriated to India, but on 21 March 2015 he again departed India but this time for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement ClaimForm on 20 July 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6. By a Notice of Decision dated 7 August 2017 the Director of Immigration (“the 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 (“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”).

7. In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from KS or his sons upon his returnto India as low due to the low intensity and frequency of past ill-treatment from them, that itwasa private and personal dispute between the two families 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 young man with work 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 KS or his sons to locate him.

8.  On 18 August 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 24 November 2017 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board found that the Applicant failed to adduce sufficient evidence of the details of his claim despite having ample time and opportunity to obtain documentary support for his assertions, that it was implausible for him not to know certain relevant information regarding his claim, and concluded that he was not a credible or reliable witness and that most if not all of the core assertions to his claim had been fabricated or iswholly unreliable that his claim for non-refoulement protection failed on all credible grounds.

10.  On 9 July 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 in assessing his non-refoulement claim as they were not reasonable or fair as required by the Wednesbury test;

 (2) 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;

 (3) that the Director failed to take into account the argument that the Applicant was tortured at the behest of and in full collusion of the police and the state law enforcement agencies before reaching his decision;

 (4) that the Director failed to take into account that the state would be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection to its citizens under the duty of due diligence;

 (5) that the Director failed to consider or give sufficient weight to the COI evidence that support the Applicant’s aversions that the police in India would not be able to protect and instead ruled otherwise;

 (6) that the Director relied on only those COI which suited his pre-conceived conclusion which shows a clear case of unfair attitude and renders his decision void;

 (7) that the Director failed to consider the fact that corruptions and incompetency of the administration in India is still a very serious problem as shown by the various human rights organization reports which supported the Applicant’s case;

 (8) that the Director failed to attain high standards of fairness required by the Wednesbury test in his decision;

 (9) that the adjudicator failed to make sufficient enquiry before finalizing his determination; and

 (10) that the adjudicator failed to give sufficient chance to the Applicant to arrange relevant evidence for his claim as well as his appeal.   

11.  The Applicant was however by then way out of time with his Form 86, 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 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 made.

12.  As the last day of the three-months period for the Applicant to file his Form 86 fell on 24 February 2018, he was therefore some 4 ½ 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 merit of the intended application; and (iv) any prejudice to the putative respondent and to public administration: see Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393. 

13.  In the Applicant’s case, a delay or 4 ½ months must be regarded as substantial or excessive, for which he did not provide any explanation in his Form or his supporting affirmation, and as he failed to attend the hearing of his application without any explanation, I do not find any reason for his serious delay.

14.  As for the merit of his intended application, those proposed grounds as stated above are merely 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 decision, or why state acquiescence would be relevant to his claim, or in what way did they fail to take into account relevant COI or being selective or improperly rely on irrelevant COI, or what human rights situation in India has to do with his case when it was clearly some private personal disputes with his neighbours in his home village, or how did they fail to make sufficient enquiry of his claim or to apply high standards of fairness in assessing his claim,or how they failed to give him sufficient chance to arrange relevant evidence in support of his claim or his appeal.  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.

15.  As has been repeatedly emphasized by the Court of Appeal, 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 Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 20 – 59 of its decision and with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim during his appeal hearing, and while the adjudicator may at times appear to be unduly critical of his inability to provide the full address of his home village or the names of KS’s sons with whom he claimed to have disputes, she was nevertheless in my judgment entitled to find, on the basis of the nature of the alleged conflicts and for the cumulative reasons given, that the Applicant failed to establish that his fear is well-founded to be afforded non-refoulement protection.  As such,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 with sufficient particularity, I do not find any reasonably arguable basis for him to challenge the finding of the Board.  

17.  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.

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 in the absence of any good reason for his serious delay, I refuse to extend time and accordingly dismiss his 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