DALJINDER SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 1759/2020

[2021] HKCFI 1062

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1759 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 34-year-old national of India who arrived in Hong Kong on 8 March 2015 with permission to remain as a visitor up to 22 March 2015 when he did not depart and instead overstayed until 19 February 2016 when he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his uncle and his uncle’s sons over a land dispute in his home village. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Deo, District Taran, Punjab, India. After leaving school he worked in his grandfather’s farmland which had been the subject of dispute over how it should be divided between his father and his uncle since the death of his grandfather, and after his father died and he therefore inherited his share in the farmland which was however disputed by his uncle and sons and led to many violent confrontations that the Applicant was beaten badly on several occasions, and to avoid further clashes with his uncle and sons, his mother in 2009 sent him away to work in Qatar.

3.  In 2015 the Applicant returned from Qatar to his home village, but shortly thereafter he was again attacked by his uncle’s sons that he had to escape to hide in his sister’s place, but soon he was located by them and was beaten again for which he was subsequently taken to the hospital for medical treatments.     

4.  Thereafter the Applicant felt it was no longer safe to remain in India, and so on 8 March 2015 he departed for Hong Kong where he had overstayed, and upon his subsequent surrender to the Immigration Department he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 28 September 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  While being released on his recognizance pending the determination of his claim, the Applicant in April 2018 married a local resident in Hong Kong.

6.  By a Notice of Decision dated 13 November 2018 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 his 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”).

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 his uncle and his uncle’s sons upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that it was a private family dispute over land 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”) shows 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 parts of India away from his home district in large cities such as Delhi or Mumbai where it would be difficult if not impossible for his uncle or his uncle’s sons to locate him.

8.  On 22 November 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but before his appeal could be dealt with by the Board, the Applicant on 19 March 2019 applied in writing to the Board to withdraw his appeal as he considered it was safe for him to return to his home country.

9.  On 26 March 2019 the Board, upon being satisfied that the Applicant’s application to withdraw his appeal was freely sought, that he understood the consequences of the withdrawal, and that there was good reason for his proposed withdrawal of his appeal, informed the Applicant in writing that his appeal has been withdrawn and that the Director’s decision has also been confirmed.

10.  More than one year later on 13 July 2020 the Applicant wrote to the Board to seek to proceed with his appeal, and on 15 July 2020 the Board informed him in writing that since 26 March 2019 his appeal has been withdrawn at his request and that no further action would be taken by the Board in respect of his appeal.

11.  On 2 September 2020 the Applicant filed a Form 86 for leave to apply for judicial review of that decision dated 15 July 2020 of the Board, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely repeated his claim that he would be killed if he was refouled to his home country, and that the decision of the Director in unfair and unreasonable but without providing any particulars or elaboration how it is so, nor did he put forward any other proper ground for his intended challenge. As such and in the absence of any error of law or irrationality or procedural unfairness in his processes before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge of either decision.

12.  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.

13.  In the Applicant’s case, in the absence of any evidence that his withdrawal was invalid, the Board having already withdrawn his appeal at his request on 26 March 2019 is now functus officio as his appeal is no longer extant, and that it has no jurisdiction to take any further step regarding the appeal: see Re Ali Usman [2018] HKCA 955, Re Das Purnima Rani [2019] HKCA 669.

14.  If it were the intention of the Applicant to judicially review that earlier decision of the Board for withdrawing his appeal, he would be seriously out of time, 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 3 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.

15.  As the last day of the 3-month period for him to file his Form 86 fell on 26 June 2019, the Applicant would be more than 14 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 HKCA 393.

16.  In the Applicant’s case, a delay of more than 14 months must be considered as very substantial, for which as noted he did not provide any explanation in his affirmation, and as such I do not see any good or valid reason for his such serious delay.    

17.  As for the merits, if any, of his intended application, again as noted above the Applicant has not put forth any proper ground for his intended challenge. In any event 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 parts 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.  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.  Furthermore, the Applicant recently on 23 March 2021 wrote to the Court requesting to withdraw his judicial review application as he has been granted his dependent visa in Hong Kong and that he would like to go back to his home country.   

20.  In the premises, and as I am not satisfied for the reasons given that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation of his wish to withdraw his claim, I accede to his request 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