GARG SUMEER v. TORTURE CLAIMS APPEAL BOARD

HCAL 1487/2019

[2021] HKCFI 1512

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1487 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 (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 36-year-old national of India who arrived in Hong Kong on 20 November 2007 with permission to remain as a visitor up to 4 December 2007 when he did not depart and instead overstayed, and was arrested by the police on 6 April 2008. After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his uncle 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 Bastheda, Himachal Pradesh State, India. After leaving school he assisted his father in farming on the land inherited from his grandfather, but as his uncle was not happy with his share of the inheritance and always coveted his father’s farmland by disputing his father’s title in the land, thus causing numerous conflicts between the 2 families.

3.  After several occasions when he was attacked by his uncle’s sons during their arguments over the land and sustained injuries, the Applicant was advised to leave India to avoid further attacks, and so on 20 November 2007 he departed India for Hong Kong where he overstayed, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he only completed a Torture Claim Form (“TCF”) with legal representation from the Duty Lawyer Service (“DLS”) but not the required Supplementary Claim Form (“SCF”) despite repeated requests by the Immigration Department, nor did he attend any screening interviews before an immigration officer.     

4.  By a Notice of Decision dated 22 June 2015 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”).

5.  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 sons upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that his problem with them was a private family dispute over inherited 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 where it would be difficult if not impossible for his uncle or sons to locate him.

6.  On 10 March 2016 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”), but as he was by then way outside the 14-day period to file his notice of appeal as required under Section 37ZS(1) of the Immigration Ordinance, the Board therefore proceeded under Section 37ZT(2) to decide without a hearing whether to allow the late filing of his notice of appeal, and by a decision dated 2 June 2017 it refused to allow his late filing upon finding no good reason for his serious delay of more than 8 months and the absence of any special circumstances that may make it unjust not to allow him to do so.        

7.  Meanwhile on 19 May 2017 the Director on his own initiative invited the Applicant 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”), and in the absence of any response from him, the Director by a Notice of Further Decision dated 14 June 2017 rejected his claim under BOR 2 Risk.

8.  On 3 October 2017 the Applicant again lodged an appeal to the Board against the Director’s Further Decision, but again his was late with his appeal, on this occasion for more than 3 months, and by a decision dated 23 August 2018 the Board found no good reason for his serious delay and refused to allow the late filing of his appeal.

9.  On 31 May 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s second decision, but no ground for seeking relief was given in his Form or in his supporting affirmation for his intended challenge.

10.  By then the Applicant was also 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 23 November 2018, the Applicant was therefore more than 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: see AW v Director of Immigration [2016] 2 HKCA 393.

12.  In the Applicant’s case, a delay of more than 6 months must be considered as very substantial, for which he did not provide any explanation in his Form or supporting affirmation, and as the record shows that the decision was sent on the same day to his last reported address without being returned through undelivered post, I do not see any good reason for his serious delay.

13.  As for the merits, if any, of his intended application, as noted above, the Applicant has not put forward any proper ground for his intended challenge, and in the absence of any error of law or irrationality 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 merits in his intended application.   

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 fact is that it has been established by the Director in his earlier decision that the risk of harm in his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other parts of India, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

16.  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.

17.  Furthermore, the Applicant on 12 April 2021 wrote to the court requesting to withdraw his application as his dispute in his home country has been settled and that he wants to return to India.

18.  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, nor do I see any good reason to extend time for his seriously late application, 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