SHIVJIT SINGH v. IMMIGRATION DEPARTMENT

HCAL 300/2018

[2020] HKCFI 146

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 300 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 29 March 2016 refused; and

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

It is further directed that:

3.  if the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

4.  when filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

5.  the court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

6.  if the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

7.  liberty to apply.

Observations for the Applicant:

1.   The Applicant is a 25-year-old national of India who on 18 September 2015 arrived in Hong Kong but when he was denied 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 a land mafia for refusing to transfer his land to him.  He was subsequently released on recognizance pending the determination of his claim.

2.   The Applicant was born and raised in Talwara Township, Mukerian City, Hoshiarpur District, Punjab State, India where his father inherited some farmland in the village from his grandfather.

3.   In about 2005 Harpal, an influential man from neighbouring village with political   connections wanted the Applicant’s father to transfer the farmland to him, but when his father refused, Harpal would over the years send his men to harass and threaten his father,sometimes even beat his father but for which the local police refused to take any action afterhaving received bribes from Harpal, and in 2010 his father simply disappeared withouta trace.

4.   In 2012 when the Applicant reached the age of 18, he inherited the farmland on which he started to farm upon leaving school. One day in December 2012 Harpal came to demand that he transferred the land to him otherwise he would disappear like his father,and when the Applicant refused and pushed him away, a fight ensued between them when Harpal was eventually driven away.

5.   Afterwards the Applicant continued to work in his farmland when he was suddenly attacked by some men from behind with sticks that he lost consciousness and was taken to hospital by his neighbours.  After his discharge from the hospital he reported the matter to the police but when they refused to do anything, he suspected that those men were sent by Harpal to attack him.

6.   On the following day the Applicant returned to the police station to press his charges against Harpal when he was instead detained for two days during which he was beaten by the police and was deprived with food or water, and was only released after being advised by one of the officers to give Harpal what he wanted to avoid any further problems.

7.   For the next two years Harpal continued to send his men to harass and threaten the Applicant that eventually in August 2014 the Applicant decided to leave India to avoid the harassments for Dubai until September 2014 when he returned to his home village without any incidents.

8.  One day in February 2015 while he was travelling on his motorcycle, the Applicant was ambushed by Harpal and his men who beat him violently that he lost consciousness and was later taken to the hospital for treatments.

9.  Upon his discharge from the hospital the Applicant was taken by the police to the station where he was detained for about one month during which he was injected with some unknown substances that he became dizzy and semi-conscious most of the time and was asked to sign the transfer of his land to Harpal or else to leave India to save his life.

10.  The Applicant chose the latter, and upon his release and while he was making arrangements to leave India, he was advised by his friend that he could seek asylum in Hong Kong, and so he departed India in August 2015 first for Bangkok and then Macau,and later in September 2015 when he tried to enter Hong Kong from Macau but was denied entry into Hong Kong, he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 4 November 2015, and attended screening interview before the Immigration Department with legal representation from Duty Lawyer Service.

11.  By a Notice of Decision dated 8 December 2015 the Director of Immigration (“the 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 (“HKBOR”) (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

12.  In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and took issue with the credibility of his claim over his claimed ownership of the farmland from his father, and in any event assessed the level of risk of harm from Harpal or his men to him upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that Harpal just wanted his land and after he had left India there was no longer any reason to harm him, that reliable and objective Country of Origin Information (“COI”) show that there are laws and legal system in India to protect property rights that the Applicant can resort to for relief and protection, and that reasonable internal relocation alternatives are also available in India witha large population of 1.2 billionpeople spread acrossa vast territory of more than 3.2 million square kilometers that it wouldnot be unduly harsh for the Applicant as an able-bodied young man 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 Harpal or his men to locate him.

13.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 4 March 2016 before the Board during which he confirmed the truth of the evidence contained in the hearing bundle but declined to give further evidence before the Board or to answer any specific questions raised by the adjudicator for the Board over his claim that his father in 2010 transferred the farmland to him when he was then only 16 years of age prior to his father’s disappearance.  On 29 March 2016 his appeal was dismissed by the Board which also confirmed the Director’s decision.

14.  In its decision the Board found from materials based on reliable COI that in India a person must be of the age of 18 or above to hold landed property, but as the Applicant was only 16 in 2010 when his father was said to have disappeared and hence could not have transferred his land to the Applicant in accordance to the law before his disappearance,and in the absence of any reliable evidence that the Applicant is indeed the legal owner of the farmland, it found that it is not plausible for him to be transferred or inherited the land from his father, and hence it was not accepted that Harpal had wanted to harm him in order to force him to transfer the land to him, or that he had been subjected to any threats or ill-treatment from Harpal or his men, and concluded that his non-refoulement claim for protection therefore failed on all applicable grounds.

15.  By a Notice of Further Decision dated 22 February 2017 the Director again rejected the Applicant’s claim in the absence of any response from him to an earlier invitation 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”).

16.  On 26 February 2018 the Applicant filed his Form 86 for leave to apply for judicial review, but did not properly specify which decision that he intended to challenge, nor did he put forward any ground for seeking relief in his Form or in his affirmation of the same date in which he merely repeated his claim that he does not want to go back to his home in India for fear that he would be killed, and that he just wants the court to review his case.

17.  Whichever decision it is that he wished to challenge, the Applicant was by then wayout of time with his application, as Order53, 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.

18.  As the last day of the three-month period for the Applicant to file his Form 86 fell on 22 May 2017 if it was the Director’s Further Decision of 22 February 2017 that he wished to challenge, in which case he would be late by more than nine months with his intended application, and would be even more so if it was the Board’s decision when he would be late by almost 20 months, 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 Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.  

19.  In the Applicant’s case, a delay of 9 months or 20 months in either case must be considered as very substantial or excessive, but for which he did not provide any explanation in his affirmation, and as such I do not find any good reason for his such serious delay.

20.  As for the merits of his intended application, as already noted he did not put forward any grounds for his challenge other than just for the court to review his case.

21.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing ofa non-reoulement 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 in their decision 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.

22.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 16 – 52 of its decision, and in the absence of any error of law or procedural unfairness in the process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

23.  Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim which if true isa localized one and that it is not unreasonable or unsafe for him to relocate to other part 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.

24.  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.

25.  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 his 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