LACHHMAN SINGH v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 276/2019

[2022] HKCFI 490

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 276 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;

1.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 17 September 2012 refused; and

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

Observations for the Applicant:

1.  The Applicant is a 45-year-old national of India who arrived in Hong Kong on 12 November 2010 as a visitor with permission to remain up to 26 November 2010 when he did not depart and instead overstayed, and was arrested by police on 3 January 2011. 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 the local supporters of the political party Shiromani Akali Dal (“SAD”) as he supported their rival Indian National Congress (INC”). He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Bhuttiwala, Punjab, India where he followed his family’s tradition in supporting INC by participating in their local activities and assisting in their election campaigns.

3.  In February 2007 while assisting INC in bringing fellow villagers to cast their votes in the general election for the Punjab State Assembly, the Applicant was attacked by a group of SAD supporters with hockey sticks that he lost consciousness and was taken to a hospital for medical treatments for cuts and bruises as well as a broken arm.

4.  After his discharge from hospital, the Applicant feared of further attacks by SAD supporters that he left his home village to take shelter in his relatives’ places in different towns, and on 11 November 2010 he departed India for Hong Kong where he overstayed as a visitor, and upon his subsequent arrest by the police he then raised his torture claim, for which he completed a Torture Claim Form (“TCF”) and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

5.  By a Notice of Decision dated 31 July 2012 the Director of Immigration (“Director”) rejected the Applicant’s torture claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment after taking into account of all the relevant circumstances of the Applicant’s claim and upon finding the credibility of his claimed fear of torture upon his return to India undermined by his failure to raise such claim for protection as soon as his arrival in Hong Kong until his subsequent arrest by police, and in any event of no basis for his alleged ill-treatments by those local SAD supporters to amount to torture as defined under Article 1 of the Convention of severe pain or suffering, nor was it inflicted by or instigated of or with the consent or acquiescence of any public official or other person acting in an official capacity of the Indian government to authorities under Article 1 of the Convention that it is not accepted that there are substantial grounds for believing that the Applicant will be subjected to a real or personal or foreseeable risk of torture upon his return to India.

6.  On 7 August 2012 the Applicant lodged a petition under Article 48(13) of the Basic Law to the Chief Executive against the Director’s refusal of his torture claim, which petition was then delegated to be dealt with by the Torture Claims Appeal Board (“Board”), and for which the Board did not hold any oral hearing and proceeded to deal with the appeal in the absence of the Applicant and on paper, and on 17 September 2012 the Board dismissed the petition on the same basis and findings as by the Director of no evidence of the Applicant’s claimed ill-treatment to amount to torture of severe pain or suffering within the definition of Article 1 of the Convention or that it was inflicted by or at the instigation of or with the consent or acquiescence of any public official or other person acting in an official capacity of the Indian government or authorities under Article 1 of the Convention.  

7.  It is not clear whether the Applicant did proceed to seek non-refoulement protection or whether the Director did consider his non-refoulement claim under the other applicable grounds upon the commencement of the Unified Screening Mechanism (“USM”) on 3 March 2014 for the assessment of all non-refoulement claims, and upon the Court’s subsequent enquiry, the Director by a letter dated 14 January 2022 confirmed no record of any claim made by the Applicant under USM including BOR 2, BOR 3 or persecution risks.    

8.  Meanwhile on 29 January 2019 the Applicant filed his Form 86 for leave to apply for judicial review of a decision of the Director which he dated 10 June 2012 but which was in fact dated 31 July 2012, and given the fact as noted above that the Director’s decision had been superseded by the Board’s decision and hence is no longer susceptible to judicial review: see Re Moshsin Ali [2018] HKCA 549, I shall treat the application as one to seek leave for judicial review of the Board’s decision instead, but for which the Applicant has not put forth any ground for seeking relief either in his Form or in his supporting affirmation of the same date in which he just stated that the decision is unfair and unreasonable but without providing any particulars or elaboration as to how it is so, nor did he request any oral hearing for his application.

9.  By then the Applicant was also seriously out of time 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 day 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.

10.  As the last day of the 3-month period for him to file his Form 86 fell on 17 December 2012, the Applicant was therefore more than 6 years 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 HKC 393.

11.  In the Applicant’s case, a delay of more than 6 years must be considered as extremely substantial and inordinate, for which he did not provide any explanation in his Form or affirmation, and as the record shows that the Board’s decision was sent on 17 September 2012 to the Applicant’s last reported address without being returned through undelivered post, I am unable to see any good reason for his such serious delay.

12.  As for the merits, if any, of his intended application, as noted above the Applicant has also failed to put forth any proper ground for his intended challenge, and in the absence of any error of law or irrationality 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 merits in his intended application either.

13.  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.             

14.  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 torture claim.

15.  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 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