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

HCAL 368/2018

[2018] HKCFI 2126

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 368 of 2018

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 the Applicants in open court;

1.      an extension of time for the application for leave to apply for Judicial Review be refused; and

2.      leave to apply for judicial review dismissed.

It is further directed that:

(1)   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/she must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal,

(2)   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,

(3)   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,

(4)   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,

(5)   Liberty to apply.

Observations for the Applicant:

1.  The Applicant is a 26-year old national of India who entered Hong Kong illegally in 2016 with his wife AK and surrendered to the Immigration Department when they subsequently lodged a non-refoulement claim on the basis that if they returned to India they would be harmed or killed by both their families who were against their relationship and their subsequent marriage. They were subsequently released on recognizance pending the determination of their claims which they agreed to be dealt with together.

2.  Both the Applicant and his wife AK were born and raised in the province of Punjab, India but came from different village and social status, where his father was a farmer who supported the Congress Party, whilst AK was from a wealthy family where her father supported the Akali Dal Party with political connections.

3.  The Applicant met AK in a friend’s wedding in Amristar in November 2015 and soon entered into a relationship, but when the Applicant with his family later made marriage proposal to AK’s family, they were rejected by her parents due to their different status, and that her father warned that the Applicant should stopped seeing his daughter. As the Applicant’s father felt humiliated by the rejection and the insults, he turned hostile towards AK and became also against her relationship with the Applicant.

4.  Yet the Applicant and AK did not heed their parents’ warnings and carried on with their relationship, but one day in December 2015 while they were travelling together in Jalandhar, they were intercepted by the Applicant’s father who scolded AK fiercely for still seeing the Applicant and threatened to kill her if she did not leave his son.

5.  On another occasion in late December 2015 while the Applicant was travelling on his motorcycle, he was ambushed by several men who claimed that as he failed to take heed of the warning of AK’s father, they were going to teach him a lesson and proceeded to beat him causing injuries to his forehead and right ear which required medical treatment at a local clinic. Afterwards he was told by AK that it was her father who hired those men to teach him a lesson, the Applicant made a complaint to the police, but it did not appear to him that they were keen to make any investigation.

6.  As the Applicant and AK became concerned for their safety but did not want to give up their relationship, they decided to leave India to seek non-refoulement protection in Hong Kong, and so on 28 December 2015 AK departed India for Hong Kong as a visitor and overstayed until 12 January 2016 when she surrendered to the Immigration Department and later raised her non-refoulement claim after being released on recognizance.

7.  On 11 February 2016 the Applicant also departed India but went to China first and from there he sneaked into Hong Kong on 15 February 2016 and then surrendered to the Immigration Department on 22 February 2016. After being released on recognizance he later lodged his non-refoulement claim on 22 June 2016.

8.  In early April 2016 the Applicant married AK in a Sikh Temple in Hong Kong, and on 16 August 2016 they jointly completed a Non-refoulement Claim Form (“NCF”) but attended separate screening interview before the Immigration Department with the same legal representation from the Duty Lawyer Service.

9.  By a Notice of Decision dated 20 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 Claim”), 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 of all the relevant circumstances of the claim of the Applicant and AK and assessed the risk of harm to them upon their return to India as low due to the low intensity and frequency of past ill-treatment from their respective families, that their problem arose from private family disputes without any official involvement that state or police protection would be available to them if resorted to, and that reliable and objective Country of Origin Information (COI”) 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 them as able-bodied young adults to move to other area away from their home district in large cities such as Delhi where it would be difficult if not impossible for their families to locate them.

11.  On 3 November 2016 the Applicant and AK jointly filed their appeal to the Torture Claims Appeal Board (“The Board”) against the Director’s decision, and for which they attended an oral hearing on 21 August 2017 before the Board during which they however declined to testify but the Applicant did answer questions put to him by the Adjudicator for the Board. On 3 October 2017 their appeal was dismissed by the Board which also confirmed the decision of the Director.

12.  In its decision the Board accepted that the Applicant and AK had a genuine relationship which was opposed by both of their families, but found that AK had never been subjected to any physical violence at the hands of or behest of either her own family or that of the Applicant, whilst the latter had been assaulted once by unknown men and was injured but not seriously, that in the absence of any evidence of official involvement that reasonable state protection would be available to both of them, and that they can without hardship relocate safely elsewhere in India away from their home district where they can earn a living as a married couple or otherwise.    

13.  On 7 March 2018 the Applicant and AK filed their Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in their Form, and only AK filed her supporting affirmation on the same date in which she simply deposed that:

“We cannot go back to our country at this moment because danger is still there for our life. Please help us to stay in Hong Kong until our problem will resolve. Exhibit-1 Decision of Immigration.”

14.  Shortly before the hearing of their application now before me, AK filed another affirmation on 20 August 2018 stating that she wanted to go back to India as her parent was seriously sick and she wanted to finish her application as soon as possible.

15.  At the oral hearing when both the Applicant and AK appeared in person, AK confirmed her intention to withdraw her application so that she could leave Hong Kong immediately to return to India, and in the absence of any objection from the Applicant, I granted AK leave to withdraw her application, leaving only the Applicant’s application before the court, but for which as noted above he had no supporting affirmation, nor did he put forward any ground for his intended challenge.

16.  In fact, the Applicant had one other serious problem for which he was unable to provide any explanation, which is that he was more than two months 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.

17.  Since the Board’s decision was dated 3 October 2017, the last date for the Applicant to make their application therefore fell on 3 January 2018, hence his Form 86 filed on 7 March 2018 was late by more than two months, for which as noted above he was unable to give any explanation, and to see whether there is good reason for extending time, I should consider the merits of his application, again for which as noted no ground has been put forward for his intended challenge.

18.  At the oral hearing the Applicant pointed out that it was his intention to jointly make his supporting affirmation with AK but somehow for some reason he could no longer remember he was not present when AK affirmed to it, and it was his wish to adopt what was stated in the affirmation, but for reason noted above it would not assist his case either.     

19.  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 simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

20.  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.

21.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s application for judicial review, and in the absence of any good reason for extending time, I refuse to grant him leave to file his Form 86 out of 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