KIRANPREET SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 3551/2019

[2021] HKCFI 1782

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3551 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 29-year-old national of India who arrived in Hong Kong on 6 August 2015 with permission to remain as a visitor up to 20 August 2015 when he did not depart and instead overstayed, and on 24 September 2015 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his friend’s family who blamed him for his friend’s murder. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Bharophar, Amritsar, Punjab, India. After leaving school he assisted his father in farming in his home village.

3.  One day in April 2015 he met with his friend Harjinder Singh (“HS”) in a restaurant in the market place in Amritsar to discuss some monetary matter when some masked men came in and shot HS, of which the Applicant immediately informed HS’s father who then came and took HS to the hospital where he later died from his wounds.

4.  Shortly thereafter the Applicant started to receive threatening phone calls from HS’s family members who blamed him for HS’s death, and one day in May 2015 when he was attacked by some masked men with wooden sticks that he collapsed onto the ground and lost consciousness and was taken to the hospital for medical treatments, the Applicant became fearful for his life, and so on 14 June 2015 he departed for Indonesia where he stayed for one week before returning to Delhi for one month, and then on 29 July 2015 he again departed India for Thailand, and from there he later travelled to Hong Kong on 6 August 2015 where he overstayed and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 3 August 2017 and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).  

5.  By a Notice of Decision dated 30 August 2017 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“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”).

6.  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 HS’s family upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence or reason for HS’s family to blame him for HS’s murder since the murder was also witnessed by other people in the restaurant and that otherwise the police would have arrested the Applicant, that it was in any event a private personal dispute between the Applicant and HS’s family 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 HS’s family to locate him.

7.  On 11 September 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 17 July 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 8 October 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence about the shooting of HS in the restaurant where there were many other people who also witnessed the shooting by those masked men that it doubted his claim that HS’s family had blamed him for HS’s murder, and that given there were CCTV and eye witnesses’ accounts that HS was shot by someone else that there was no reason for HS’s family to put the blame on the Applicant that it concluded of no reliable evidence of any risk of any harm to the Applicant upon his return to India that his claim for non-refoulement protection failed on all applicable grounds.  

9.  On 29 November 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely stated that he does not agree with the decision because he cannot go back to his home country as his life would be in danger there but without putting forward any proper ground 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 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 8 January 2019, the Applicant was therefore more than 10 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: AW v Director of Immigration [2016] 2 HKCA 393. 

12.  In the Applicant’s case, a delay of more than 10 months must be considered as very substantial, for which he did not provide any explanation, 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 did not put forward any proper grounds in his Form 86 or his supporting affirmation 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 either.     

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 Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 15  - 49 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law 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 reasonably arguable basis to challenge the finding of the Board.  

16.  The fact is that it has been established by the Director in his 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 parts 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.  

17.  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.

18.  Furthermore, the Applicant on 13 May 2021 filed an affirmation requesting to withdraw his application as his “problem is solved” and that he wants to return to his home country.

19.  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, and in the absence of any good reason for his serious delay, and in view of his latest confirmation that his “problem” has been resolved and hence the basis of his claim no longer exists, 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