SUKHDEV SINGH v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 963/2018

[2020] HKCFI 2192

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 963 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 19 July 2017 refused; and

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

Observations for the Applicant:

1.   The Applicant is a 44-year-old national of India who arrived in Hong Kong on 12 November 2006 with permission to remain as a visitor as extended to 26 December 2006 when he did not depart but instead overstayed until he was arrested by the police on 7 February 2007.  After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to India he would be harmed or killed by a fellow villager over certain personal disputes. 

2.   The Applicant was born and raised in Village Mahadian, District Fatehgarh Sahib, Punjab, India.  After leaving school he engaged in agricultural work in his home village where his elder brother was elected as the president of the Village Committee.

3.  In April 2001 while his brother was making a speech in a public event, it was disrupted by a fellow villager Surjit Singh and his followers who were drunk and were making a scene, and as a result Surjit Singh and his men were arrested by the police.

4.  After the incident the Applicant complained to the Village Committee about Surjit Singh’s behavour, and as a result Surjit Singh and his men were ordered to apologize to the Applicant’s brother, for which Surjit Singh began to hold grudges against the Applicant and his family.

5.  In early 2002 during the election of the Punjab Legislative Assembly, the Applicant’s brother witnessed Surjit Singh and his men trying to cast bogus votes under false names, and when he tried to stop them, they turned around and attacked him.  When the Applicant heard the commotion and rushed there, he found his brother lying on the ground covered with blood and later died in the hospital.

6.  As a result Surjit Singh and his men were arrested by the police and were charged for the murder of the Applicant’s brother, but in 2005 they were acquitted by the court after having bribed some of the witnesses, and upon their release Surjit Singh threatened to kill the Applicant in revenge, and so the Applicant fled from his home village to hide in Bangalore, but when he heard that Surjit Singh and his men were looking for him everywhere, he therefore felt it was no longer safe to remain in India, and so on 9 November 2006 he departed India and eventually arrived in Hong Kong where he subsequently overstayed, and upon his arrest by the police he raised his torture claim under Part VIIC of the Immigration Ordinance, Cap 115 (“the Ordinance”), for which he completed a Torture Claim Form on 15 January 2013 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.  By a Notice of Decision dated 22 October 2013 the Director of Immigration (“the Director”) rejected the Applicant’s torture claim upon finding the credibility of his claims of death threats from Surjit Singh doubtful and unreliable, that there was no evidence that Surjit Singh and his men were above the law given the fact that they were arrested by the police and were prosecuted by the authority and were put though legal proceedings by the court that in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, and that with reasonable internal relocation alternatives available within India that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other area away from his home district where it would be difficult if not impossible for Surjit Singh or his men to locate him.   

8.  The Applicant then raised a non-refoulement claim for protection under the unified screening system other than torture risk but included risk of violation of his absolute and non-derogable rights under Articles 2 and 3 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relation to the Status of Refugees, but before his such claim was being decided by an immigration officer, on 6 June 2016 he notified in writing of his decision to withdraw his claim, which was subsequently accepted by the Director as withdrawn under Section 37ZE(1) of the Immigration Ordinance.

9.  On 27 March 2017 the Applicant requested in writing to re-open his non-refoulement claim because “the present government in India was a life threat to him and that his family advised him not to return to India”, of which section 37ZE(2) of the Ordinance provides as follows:

“ Subject to section 37ZF(3), a torture claim that has been withdrawn under subsection (1) may be re-opened if the person who made the claim provides sufficient evidence in writing to satisfy an immigration officer that –

(a) since the withdrawal, there has been a change of circumstances that –

(i) could not reasonably have been foreseen by the person when the person gave the notification under subsection (1); and

(ii) when taken together with the material previously submitted for the claim, could increase the prospect of success of the claim; or

(b) by reason of special circumstances, it would be unjust not to re-open the claim.”

10.  By a Notice of Decision dated 18 April 2017, the Director refused the Applicant’s request to re-open his claim for the following reason:

“ You request for re-opening of your non-refoulement claim on the ground that the present government in India is a life threat to you and your family advised you not to return to India.

After careful consideration, it is decided not to re-open your non-refoulement claim which was withdrawn in writing for the reasons that you failed to provide sufficient evidence in writing to satisfy us that (a) since the withdrawal, there has been a change of circumstances that could not reasonably have been foreseen by you when you gave your withdrawal notification and when taken together with the material previously submitted for the claim, could increase the prospect of success of the claim; or (b) by reason of special circumstances, it would be unjust not to re-open the claim.”

11.  On 24 April 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and in Section 2 of his Notice of Appeal he put forward the following grounds for his appeal:

“ …I want to say that last year in 5/2016, on Tuesday I had cancelled my appeal to go back to India as I wanted to go back to India at that time. But it took very long for me to go back and before I could go back, my enemies came to know about it and my father told me not to go back as there was danger to me. So I cancelled my departure for India and went to Skyline Tower to re-open my case again. This is true that there is danger to my life. Therefore, please accept my application. I will be grateful to you.”

12.  The Board dealt with the appeal on paper in the absence of the Applicant, and on 19 July 2017 it dismissed the appeal upon finding that the Applicant had failed to make out a case for re-opening his claim under section 37ZE(2) of the Ordinance, as it stated in its decision as follows:

“ 7. The Petitioner has not made out a case that there was a change of circumstances in that there was nothing to substantiate his allegation that “the present government in India is really a life threat for me …” It was only a bare statement. There was no evidence that there was a change of government nor was there any explanation as to why he said “the present government in India is really a life threat for me”.

8. He gave another completely different version in Section 2 Grounds of Appeal/Petition of the Notice of Appeal/Petition. He stated that “…my enemies came to know about it and my father told me not to go back as there was danger to me…”. Again, it was a bare and hearsay allegation not supported by facts.

9. Further there is no substance in saying that “my enemies came to know about it” because even if he had returned earlier his enemies would have more time to know about his return.”

13.  On 29 May 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date.  Nor did he request any oral hearing for his application.  As such I do not find any proper or valid grounds from the Applicant for his intended challenge.

14.  He was by then 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.

15.  As the last day of the three-month period for him to file his Form 86 to review the Board’s decision fell on 19 October 2017, the Applicant was therefore more than 7 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: Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.       

16.  In the Applicant’s case, a delay of more than 7 months must be regarded as very substantial or excessive, for which he did not provide any reason.  As such and as the record shows that the Board’s decision was sent to his last reported address on the same date and has never been returned through undelivered mail, I do not find any good reason for his serious delay.

17.  As for the merit of his intended application, as noted above the Applicant has not put forward any proper or valid ground for his intended application, and in the absence of any error of law or procedural unfairness in his process before the Board or its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis or merit for his intended challenge.    

18.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an 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 risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and 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 properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessments by the Director or the Board in the hope that the court may consider the matter afresh: see 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.

19.  In the Applicant’s case, on the basis of the reasons put forward by him for his request to re-open his claim as noted above, both the Director and the Board were entitled to find, and rightly so in my judgment, that he had failed to provide any evidence, let alone sufficient one, that since the withdrawal there had been a change of circumstances that could not reasonably have been foreseen by him when he gave notice of the withdrawal, or of any special circumstances which would be unjust not to re-open his claim under section 37ZE(2) of the Ordinance.      

20.  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.

21.  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 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