BALJIT SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 239/2015 and

HCAL 722/2019

(Consolidated)

[2021] HKCFI 3887

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 239 OF 2015

AND

     CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 722 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 the Applicant in HCAL 239/2015 and HCAL 722/2019 in open court;

1.  HCAL 239/2015 be consolidated with HCAL 722/2019;

2.  extension of time for the application for leave to apply for Judicial Review under   

     HCAL 239/2015 of the decision of Torture Claims Appeal Board dated 3 March 2015   

     be refused;

3.  leave to apply for Judicial Review under HCAL 239/2015 be dismissed; and

4.  leave to apply for Judicial Review under HCAL 722/2019 be dismissed.

Observations for the Applicant:

1.  The Applicant is a 42-year-old national of India who arrived in Hong Kong on 11 July 2014, and when he was refused entry by the Immigration Department, he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by the local supporters of rival political party Akali Dal Party (“ADP”) also known as Shiromani Akali Dal (“SAD”). He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Rakkardhaha, Mohali, Punjab, India. After leaving school he worked as a farmer on his family’s farmland in his home village, and followed his father’s footstep to support the political party Congress Party (“CP”) without joining as a member or holding any official post in the party but regularly attended their local meetings and rallies.

3.  In 2012 he started to receive threats from certain local ADP’s supporters demanding him to stop supporting CP, and one day in May 2012 he was beaten by some of them with wooden sticks that he was subsequently brought to the hospital for medical treatments, but when the local police failed to take any action against those ADP supporters, and after he was attacked again in October 2012, he fled from his home village to take shelter at his aunt’s place in Hiala where he stayed for one year without incidents before eventually returning to his home village in 2013.

4.  However, one day in December 2013 while he was working on his family’s farmland, the Applicant saw some local gangsters on their motorbikes carrying weapons approaching his farmland, as he was apprehensive that they may be sent by the ADP people to harm him, he therefore fled to a friend’s place in neighboring Jafar Pur Village before moving on to Phagwara, and on 23 May 2014 he departed India for China, and from there he travelled to Hong Kong on 11 July 2014, but when he was refused entry by the Immigration department, he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 7 August 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 1 September 2014 the Director of Immigration (“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 (“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 those local ADP supporters upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that given the fact that he was only an ordinary CP supporter with no official post in the party that there was no reason for him to be targeted by the ADP people or why they would still have any adverse interest in him after all these years, that in the absence of 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 India away from his home district in large cities such as Delhi where it would be difficult if not impossible for those local ADP supporters to locate him.

7.  On 15 September 2014 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 9 December 2014 before the Board during which he however declined to give any further evidence or to answer any questions from the Adjudicator for the Board despite being invited to do so to clarify and explain various issues raised of his claim. On 3 March 2015 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision the Board found the Applicant’s claim of fear of harm from those local ADP supporters just his bare assertion of which he failed to corroborate by declining to give further evidence or to answer questions raised of his claim during his appeal hearing, and that in any event as found by the Director and supported by reliable COI that reasonable internal relocation would be available for him to return safely to other part of India away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.  

9.  On 3 December 2015 the Applicant filed his Form 86 through his lawyer on Legal Aid for leave to apply for judicial review of the Board’s decision, and put forth the following grounds for his intended challenge:

(a)   That the Adjudicator’s decision was unlawful and unfair in failing to give sufficient weight to those relevant COI listed in the Director’s decision, and wrongly concluded that it would be safe for the Applicant to return to India; 

(b)   That that the Adjudicator failed to make sufficient enquiry why the Applicant was not required by the police to take part in an identification parade of his assailants, and that the Adjudicator also failed to advise the Applicant to obtain medical report from the Indian authority before deciding on the severity of the injuries suffered by him during the purported confrontation with the SAD people;

(c)   That the Adjudicator failed to appreciate the presence of State Acquiescence in the Applicant’s case which error had contributed to the Board’s decision of rejecting the Applicant’s claim; and

(d)   That the Adjudicator despite holding an oral hearing for the Applicant had failed to attain high standards of fairness required by the Wednesbury test in the decision which should be considered unreasonable in the scope of public law.

10.  The leave application originally fixed before Fung J was subsequently adjourned at the Applicant’s request pending the assignment of counsel by the Legal Aid Department. Meanwhile on 22 December 2016 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 response from the Applicant, the Director by a Notice of Further Decision dated 10 January 2017 rejected his BOR 2 claim.

11.  The Applicant never brought any appeal to the Board against this Further Decision of the Director, while his legal representation also ceased when his legal aid certificate was discharged on 7 May 2018.

12.  Later on 14 March 2019 the Applicant filed another Form 86 under HCAL 722/2019 for leave to apply for judicial review of the Further Decision of the Director, but on this occasion he did not put forth any ground for his intended challenge.

13.  For convenience purpose and to save time and costs, and with the Applicant’s consent, I direct that both leave applications be consolidated for hearing and to be dealt with together.   

14.  The Applicant was however late with both applications, 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 there is good reason for extending the period within which the application shall be made.

15.  For his first intended application under HCAL 239/2015 to challenge the Board’s decision of 3 March 2015, the last day of the three-month period for him to file his Form 86 therefore fell on 3 June 2015, hence the Applicant was 6 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 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.

16.  In the Applicant’s case, a delay of 6 months must be considered as very substantial, for which he explained in his said Form 86 that he applied for legal aid in about end of March 2015 to challenge the Board’s decision, but it was not until 30 June 2015 that he was granted legal representation when he was then already out of time, while it also took additional time for his then assigned solicitors to seek his instructions and to collect the relevant documents to prepare his Form 86 as well as the grounds for his intended challenge.

17.  Firstly, as noted above the Board’s decision was made on 3 March 2015, and even if he indeed needed Legal Aid to assist his intended challenge, I fail to see why he had to wait until the end of March 2015 to make his application, which by itself in any event cannot be accepted as any justification for non-compliance of the rules. As such I am not satisfied that he has provided any good or valid reason for his serious delay.

18.  As for the merits, if any, of his intended application, I refer to his proposed grounds as stated above, starting with his first ground in which he complains that the Board failed to take proper account of the relevant COI and arrived at the wrong conclusion that it would be safe for him to return to India. This is essentially the question of internal relocation, of which it would be relevant to bear in mind of what Cheung CJHC (as he then was) stated in the judgment of the Court of Appeal in TK v Jenkins & Anor [2013] 1 HKC 526 at paragraph 32:

“ … This is a concept common to refugee law and torture claims. The rationale is simple: if the risk of persecution or torture is a localised one, and it is not unreasonable or unsafe for the refugee or claimant to relocate to another part of the country in question (the “internal relocation alternative”), there is no justification for affording international protection under either the refugees Convention 1951 or the CAT.” 

19.  As noted above, this issue was first raised by the Director and canvassed with the Applicant during his screening interview during which the Applicant could only make a general assertion that the ADP people could locate him anywhere in India (see [6.26] – [6.27] of the decision), and on the basis of reliable COI, the Director arrived at his following conclusion that internal relocation alternatives were reasonably available to the Applicant to return safely to India without any risk of being located:

“19. … it is our assessment that the internal relocation alternatives are available and reasonable, which further lower or negate the perceived risk of you being subjected to the feared treatment in India.

20. To start with, Article 21 of the Constitution of India stipulates that all citizens in India enjoy “protection of life and personal liberty” {Item 4 of Appendix}. Furthermore, it is noted that internal relocation is permissible under India law…

21. You claimed to be in fear of harms from ADP’s people and to be afraid of staying anywhere in India because of their nationwide influence in alliance with other parties. However, it lacks facts or evidence in support of your belief that the attackers of ADP would have the resource and influence to locate you throughout India. You reckon that the ADP’s people or the ADP would make use of their alliance with other parties to search for you and inflict you in the entire India lacked any actual experience to substantiate with. Even if you were in fear of living in ADP control regions, you may have some other options of relocation. According to the general Election to Lok Sabha in 2014 issued by Election Commission of India, Bharatiya Janata Party (“BJP”) won 163 out of 200 seats in the constituency of Rajasthan [Item 7 of Appendix]. Besides, BJP also won 7 seats out of 10 seats in the constituency of Haryana [Item 8 of Appendix]. As a matter of fact, BJP is chairing the local state authority of Rajasthan, Hatyana and Uttar Pradesh. Based on these facts, even if your presumption on ADP’s nationwide influences were true, there is nothing to show that the local state authorities of these places would scarify themselves in the discharge of their proper governing duties to tolerate with any unlawful or abusive behavior out of consideration to catch you for the ADP’s benefit. Therefore, you were able to avoid any perceived harm from the members or supporters ADP, if you move to any of these three places and stay there for living.

22. Regarding the World Factbook of US Central Intelligence Agency [Item 10 of Appendix] in 2014, India has an estimated population of over 1.2 billion people as at 2014. The country is spread over 3,287,263 square kilometres with broad population. It would be difficult for those members or supporters of ADP to search and locate you in the whole country of India.

23. Being an able-bodied adult of 34 years old with class 12 level of education and around 14-year working experience, it is considered not unduly harsh for you to relocate to other areas in India so as to prevent any perceived risk of feared treatment.

24. Based on all findings in paragraph 12 to 23 above, I am of the view that there is no reasonable degree of likelihood for the feared treatment to materialize.”      

20.  This assessment of the Director was agreed and accepted by the Board in its decision, after the Adjudicator had in paragraph 18 run a summary of the relevant COI, of which it noted that “the Applicant’s view or comments are not available because he chose not to speak at the oral hearing”, and went on to state in §17 as follows:

“I refer to the Immigration Office’s Notice of Decision from page 8 to page 18 under Part “(A)” entitled “How likely it is that your feared treatment would materialize” and the cited COI on page 19. The Immigration Officer has explained in great detail as to why the Appellant will be safe to return to India, at least to places other than his home village. I agree with and accept the analysis which is based on independent sources and facts.”

21.  The Adjudicator upon analyzing the relevant COI then arrived at his own conclusion that it would be safe for the Applicant to return to India:

“20. In light of the COI, I do not accept that a handful of assailants are able to locate the Appellant wherever he may be living in order to hunt him down and do harm or kill him. This is especially so when (a) the Appellant was not even a member of the CP, (b) the role played by the Appellant was, even on his own version, one of the lowest level of support, and (c) the ADP is not the dominant political party in India. Furthermore, when the Appellant was residing in Hiala, Jafar Pur Village, and Phagwara for a total of 1.5 years, no harm had come to him, and this was despite the fact that he went to the market for shopping more than once a week while living in Phagwara for 4 months. I find there are numerous places in India other than the Appellant’s home village where he can relocate without experiencing undue hardship, which is another reason for this appeal to fail, independent of what was stated in paragraph 7 to 15 above.”

22.  Having examined the analysis of the relevant COI referred to by the Director and the Board, I do not find any error of law or irrationality in their assessment regarding the option of internal relocation available for the Applicant to safely return to India without any risk of being located.

23.  As held by the Court of Appeal in TK supra [35], the question of whether there is an internal relocation alternative is part and parcel of whether or not the claimant is a Convention refugee or a genuine CAT claimant, in relation to which the claimant bears the burden of proof, and it is for the claimant to make out his case in relation to the internal relocation issue, but as pointed out in the Board’s decision in the present case, despite being invited to do so, the Applicant declined to give further evidence or to answer questions raised of his claim including the issue of internal relocation, nor did he provide any proper ground to challenge the Director’s assessment in his notice of appeal to the Board.

24.  As such and for the reasons given, I do not find any basis or merits in this complaint of the Applicant, nor do I find it necessary to deal with his other grounds, as apart from the fact that they are just some broad and vague assertions not entirely relevant to his claim, they would not in my view assist or advance his case any further given the correct findings by both the Director and the Board that the risk 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, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK supra.      

25.  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.      

26.  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.

27.  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 under HCAL 239/2015.

28.  As for his other leave application under HCAL 722/2019 against the Director’s Further Decision dated 10 January 2017, as noted he was also late with this intended application, as the last day of the three-month period for him to file his Form 86 fell on 10 April 2017, the Applicant was almost 2 years late, which must on any view be considered as extremely substantial, for which he explained at the hearing that he had been in the hospital for 3 months due to a leg injury, but was unable to even state whether it was in 2017 or 2018, let alone other details or particulars or to produce any medical report in support of his bare assertion. Indeed, even if he was hospitalized sometimes in 2018 instead of the earlier 2017, I cannot see any reason why he had waited until 14 March 2019 to file his Form 86. As such I am not satisfied that he has provided any good reason for his serious delay.

29.  As for the merits, if any, of his intended application, the Applicant did not put forth any proper ground either in his Form 86 or his supporting affirmation for his intended challenge, and as also noted above, he did not first lodge an appeal to the Board, as is any applicant intending to challenge the Director’s decision required to do so under the second-tier screening process of the Unified Screening Mechanism (“USM”) in operation since March 2014 for screening non-refoulement claims, and also by section 37ZR(b) of the Ordinance which stipulates as follows:

“A person aggrieved by a decision of an immigration officer may appeal to the Appeal Board if the decision is made in respect of the person under –

(a) …

(b)  section 37ZI(1)(b) (decision rejecting a torture claim) …”

30.  Accordingly, the Applicant should have brought an appeal to the Board against that Further Decision of the Director first before coming to Court for leave to apply for judicial review. As such his leave application for his intended challenge is procedurally premature and incorrect, and is therefore dismissed.        

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