SUKHDEV SINGH v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 367/2018

[2020] HKCFI 1352

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 367 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 ofthe decision of Torture Claims Appeal Board dated 7 August 2017 refused; and

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

Observations for the Applicant:

1.   The Applicant is a 28-year-old national of India who arrived with his wife in Hong Kong on 18January 2016 but when they were refused entry by the Immigration Department, they raised a non-refoulement claim on the basis that if they returned to India they would be harmed or killed by a fellow villager in their home village in India over certain personal dispute.  They were subsequently released on recognizance pending the determination of their claim, and after his wife gave birth to their son on 28 January 2016 in Hong Kong,they also raised a non-refoulement claim for him on the same basis to be jointly determined together with their own claim.

2.   The Applicant was born and raised in Tehsil Nihal Singh Wala, Dhurkot Ransih,Moga, Punjab, India.  After leaving school he worked as a farmer in his home village, and later married his wife from District Ludhiana who then moved to live with him in his home village.

3.  One day in July 2014 the Applicant’s cousin, who was a school student living in his household in the village, was on her way to school when she was harassed by a local farmer Harjinder Singh (“HS”) who demanded that she should marry him.  The cousin became terrified and fled home crying to the Applicant’s family about the incident.

4.  Several days later when the Applicant ran into HS in the village, he demanded that HS should leave his cousin alone, and when HS refused, they broke into a quarrel and then a scuffle between them until HS backed down, but before he walked away he warned that he would deal with the Applicant later.

5.  On the same evening while the Applicant was resting in front of his home, HS appeared with his two brothers and assaulted the Applicant with baseball bats until he collapsed and fell onto the ground and was later taken to the local hospital for medical treatments.

6.  Upon his discharge from the hospital, the Applicant reported the matter to the police, but later on the same day HS approached him and boasted that the police would not dare to touch him as he was powerful in the village with political connections.  Several days later the Applicant was informed by the police that no action would be taken against HS due to insufficient evidence.

7.  One day in 2015 HS ran into the Applicant’s wife in the market, and blamed her and her husband for ruining his plan to marry his cousin, for which he swore to take revenge against them by killing them and destroying their family.

8.  As a result of the threat, the Applicant and his wife became fearful for their life, and took shelter at a friend’s place in a neighbouring village, and when they heard that HS was looking for them everywhere, they fled to Delhi where they stayed without incidents, but after his wife became pregnant with their child and being concerned for their child’s future welfare, the Applicant decided that they should leave India, which they did on 18 January 2016 when they departed for Hong Kong, and when they were refused entry, they raised their non-refoulement claim for protection, for which they completed a Non-refoulement Claim Form on 6 April 2016, and upon the birth of their son, they also raised a non-refoulement claim for him on the same basis to be jointly determined with their claim, and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

9.  By a Notice of Decision dated 19 October 2016 the Director of Immigration (“the Director”) rejected their claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of their absolute or non-derogable rights under the Hong Kong Bill of Rights (“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”).

10.  In his decision the Director took into account all the relevant circumstances of theirclaim and found no substantial grounds for believing that there will be any real or substantialrisk of them being harmed or killed by HS upon their return to India due to the low intensityand frequency of past ill-treatment from him, that there was no objective evidence to suggestany real intention on the part of HS to harm them over such a relatively minor dispute, that in any event in the absence of any official involvement that state or police protection would be available to the Applicant and his family if resorted to, and that reliable and objective Country of Origin Information 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 work experience to move with his family to other part of India away from his home district such as in his wife’s home district in Ludhiana or in large cities such as New Delhi where it would be difficult if not impossible for HS to locate them.

11.  On 31 October 2016 they lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which they attended an oral hearing on23 June 2017 before the Board during which both the Applicant and his wife gave evidence and answered questions put to them by the adjudicator for the Board.  On 7 August 2017 their appeal was dismissed by the Board which also confirmed the decision of the Director.

12.  In its decision the Board found the alleged threats from HS to the Applicant or his wife as hollow in the circumstances with no real intention to carry out his threats against them, that in any event such ill-treatments failed to attain the minimum level of severity under any of the applicable risks, and that with state protection and reasonable internal relocation within India available that it would not be unreasonable for the Applicant and his family to safely relocate to New Delhi, Mumbai or other large cities where it would be difficult if not impossible for HS to locate them that their claim failed on all applicable grounds. 

13.  On 7 March 2018 the Applicant filed his Form 86 just for himself for leave to apply for judicial review of the Board’s decision, as his wife had subsequently on 9 October 2018 written to court to indicate that she and her son no longer wished to pursue with their claim in Hong Kong as they wanted to return to their home country.

14.  As for his application, the Applicant however did not put forward any ground for seeking relief in his Form 86, and in his supporting affirmation of the same date he merely stated that he was not satisfied with the Board’s decision, and that his claim should be reviewed again as his life would still be in danger in his home country.

15.  By then the Applicant was also seriously late with his application, 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 that there is good reason for extending the period within which the application shall be made.

16.  As the three-month period for the Applicant to file their Form 86 expired on 7November 2017, he was therefore four 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) reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: see Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

17.  In the Applicant’s case, a delay of four months must be considered as substantial or excessive, for which no explanation was given either in his Form 86 or in his supporting affirmation, nor did he request for any oral hearing for his intended application.  In the circumstances I do not accept that he has provided any reason, let alone a good or valid one, for his substantial delay.

18.  As for the merit of his intended application, as noted above that the Applicant did not provide any grounds for his intended challenge, nor did he identify any error of law or procedural unfairness in his process before the Board or in its decision, other than just a request for the court to review his claim as his life would still be in danger in India.

19.  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 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 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 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.

20.  The fact is that it has been established by both the Director and the Board in their respective 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, there is simplyno justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

21.  In the premises and having proceeded to consider 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.

22.  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 delay, I refuse to extend time and accordingly his leave application is 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