DHESSI KIRANJEET KAUR AND OTHERS v. TORTURE CLAIMS APPEAL BOARD

HCAL 780/2018

[2020] HKCFI 2326

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 780 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 18 October 2017 refused; and

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

Observations for the Applicants:

1.   The 1^st Applicant (“A1”) together with her husband, and their son the 2^nd Applicant (“A2”) are all nationals of India who arrived in Hong Kong on 6 February 2015 with permission to remain as visitors up to 20 February 2015 when they did not depart and instead overstayed, and on 23 February 2015 they surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if they returned to India they would be harmed or killed by some local villagers in their home village over certain election dispute.  They were subsequently released on recognizance pending the determination of their claim, during which A1 gave birth to a daughter, the 3^rd Applicant (“A3”) for whom a similar claim was also made on her behalf on the same basis.  

2.   A1 was born and raised in Kishangarh, Nihal Singh Wala, Moga, Punjab, India.  After leaving school she married her husband and moved to his home district in Kandyal, Moga where she later gave birth to A2.

3.  In 2013 a cousin of her husband won the local election in their home village, but when her husband who supported his cousin in the election was assaulted by the losing candidate and her supporters, and when they later received threats from those fellow villagers, A1 and her husband decided that it was no longer safe for them and their son to remain in India, and so they departed with A2 on 6 February 2015 for Hong Kong where they subsequently overstayed, and upon their surrender to the Immigration Department, they raised their non-refoulement claim for protection, and upon the birth of A3 in Hong Kong in August 2016, A1 also raised a similar claim for her on the same basis, for which she and her husband completed a Non-refoulement Claim Form on 29 March 2017 jointly for themselves and their children, and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

4.  Whilst released on recognizance pending determination of their claim, her husband was arrested by police on 11 November 2016 for theft for which he was subsequently convicted and sentenced to prison for 2 weeks but suspended for 2 years.      

5.  By a Notice of Decision dated 26 May 2017 the Director of Immigration (“the Director”) rejected their claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of their 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”).

6.  In his decision the Director took into account of all the relevant circumstances of their claim and assessed the level of risk of harm from those fellow villagers upon their return to India as low due to the absence of or low intensity and frequency of past ill-treatment from them, that the problems between them were private personal disputes without any official involvement that state or police protection would be available to the Applicants if resorted to, and that reliable and objective Country of Origin Information 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 her husband as an able-bodied adult with working experience to move with A1 and their children 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 those villagers to locate them.

7.  On 8 June 2017 they lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which the Board did not find it necessary to conduct any oral hearing and proceeded to deal with the matter in their absence and on paper.  On 18 October 2017 their appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board did not take issue with their claim of being threatened by some fellow villagers in their home village arose from an election dispute, but found that it was a private personal dispute without any official involvement that state/police protection would be available to them upon their return to India as well as reasonable internal relocation for them to move safely to other area away from their home district without any risk of being located by those villagers that their claim for non-refoulement protection failed on all applicable grounds.

9.  On 3 May 2018 A1 filed a Form 86 for herself and her two children but not her husband for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in their Form, and in A1’s supporting affirmation of the same date made on their behalf, she merely asserted that the evidence and documents submitted in support of their case were not reviewed properly in assessing their claim but without any particulars or elaboration as to how it was so or putting forward any other proper grounds for their intended challenge, nor did they request any oral hearing for their application.

10.  By then they were also out of time with their 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 made.

11.  As the last day of the three-month period for them to file their Form 86 fell on 18 January 2018, the Applicants were therefore 3 ½ months late with their 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. 

12.  In the Applicants’ case, a delay of 3 ½ months must be considered as serious or substantial, for which no explanation was given either in their summons or affirmation, and as the record shows that the decision was sent on the same day by post to their last reported address which is the same as stated in their present application, I do not see any valid reason for their serious delay. 

13.  As for the merits, if any, of their intended application, as noted above the Applicants have not put forward any proper grounds for their intended challenge, and in the absence of any error of law or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis to challenge the finding of the Board. 

14.  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.

15.  In the Applicants’ case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in their claim is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of India, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

16.  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 Applicants’ claim.

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