SANDHU SHANI v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 2023/2018

[2020] HKCFI 2056

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2023 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 30 June 2017 refused; and

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

Observations for the Applicant:

1.   The Applicant is a 21-year-old national of India who last arrived in Hong Kong on 23 September 2015, but when he was refused entry, he raised a non-refoulement claim for protection with the Immigration Department on the basis that if he returned to India he would be harmed or killed by certain local villagers over religious disputes.  He was subsequently released on recognizance pending the determination of his claim.

2.   The Applicant was born and raised in Village Wanjha Wala, Ajnala, Amritsar, India into a Christian family.  While at school he and his Christian friends were often bullied by an elder boy Simran who came from a wealthy Hindu family in the same village, and who would often demand that the Applicant and his friends should convert to Hinduism, and when the Applicant refused, Simran and his followers would beat him with hockey sticks.

3.  To avoid such harassments, the Applicant was sent by his parents to stay with his relatives in Miga and then Delhi, but when he later heard that Simran had sent his men looking for him everywhere, and after he was assaulted by some men in Delhi whom he suspected were sent by Simran, he decided that it was no longer safe to remain in India, and so in July 2015 he departed India for Hong Kong but was refused entry and returned to India, and on 23 September 2015 he again travelled to Hong Kong, and when he was again refused entry, he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 18 November 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

4.  By a Notice of Decision dated 25 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 (“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”).

5.  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 Simran or his followers upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that his problem with Simran was a private personal dispute 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 2.9 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied young man 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 Simran to locate him.

6.  By a Notice of Further Decision dated 24 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”).

7.  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 5 August 2016, and for which he attended an oral hearing on 21 June 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 30 June 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

8.  In its decision the Board found significant inconsistencies, discrepancies and conflicts in the Applicant’s evidence of his claim of fear of harm from Simran over religious dispute, that their disputes were at most private personal bullying matters between former schoolboys, and concluded that his claim that Simran would send people everywhere to look for him is incredible and implausible that his alleged fear of harm from them upon his return to India is rejected and that his claim for non-refoulement protection failed on all applicable grounds.    

9.  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 in assessing his non-refoulement claim as 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 non-refoulement claim;

(3) 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 for which the state should 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;

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

(5) that the Director failed to consider the fact that corruption and incompetency of the administration in his country were still serious problems as reported by various human rights organization which stated testament to the Applicant’s assertions which was a clear case of unfair attitude enough to render the Director’s decision void; and

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

10.  By then the Applicant was however 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 made.

11.  As the last day of the three-month period for him to file his Form 86 fell on 30 September 2017, the Applicant was therefore almost 1 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 (iv0 any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

12.  In the Applicant’s case, a delay of almost 1 year must be considered as very substantial and excessive, for which he has not provided any explanation, and while it is noted that he was being detained at the Castle Peak Bay Immigration Centre (“CIC”) at the time when he filed his Form 86, even if he was there throughout the entire relevant period of 12 months, and there was no evidence from him that that was indeed the case, with legal assistance available within the facility of CIC, that in itself cannot be accepted as a valid reason for such a serious delay.   

13.  As for the merits of his intended application, those proposed grounds of the Applicant are all just his broad and vague assertions containing a few 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 was state acquiescence relevant to his case or to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or how did they fail to apply high standards of fairness in their consideration of 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 merits or basis in any of them, nor are they reasonably arguable for his intended challenge.

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 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 22 – 36 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.  

16.  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.     

17.  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.

18.  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