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

HCAL 230/2018

[2020] HKCFI 1184

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 230 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 of the decision of Torture Claims Appeal Board dated 3 March 2017 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 32-year-old national of India who arrived in Hong Kong on 12 May 2010 with permission to remain as a visitor up to 26 May 2010 when he did not depart and instead overstayed and was arrested by police on 28 April 2011 for possession of a forged identity card and a forged construction work permit, for which he was subsequently convicted and sentenced to prison for 8 months.  Upon discharge from prison he was referred to the Immigration Department when he raised a torture claim which was later taken as a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his uncle over a land dispute.  He was subsequently released on recognizance pending the determination of his claim.

2.   The Applicant was born and raised in Village Bhanger, District Ferozepur, Punjab, India.  After leaving school he worked as a car mechanic for a relative in neighbouring Kotkapura where he would commute every day to work.

3.   His grandfather who lived in the same village owned some farmland.  In early 2009 his grandfather became very ill and the Applicant therefore ceased working in order to look after him until he was eventually taken to the hospital where he announced in his dying bed to gift one of his farmlands to the Applicant for having taking care of him.

4.   However, one of his sons, Uncle Gurmeet, became furious as he was expecting to inherit that farmland.  Several months later he filed a false charge of theft against the Applicant and brought some policemen to the Applicant’s home looking for him, but as the Applicant was then working in Kotkapura, Uncle Gurmeet and the police therefore left empty handed.

5.   Thereafter the Applicant’s father warned the Applicant not to return home, and so the Applicant stayed in Kotkapura and took shelter in his relative’s place, but when he heard that Uncle Gurmeet was looking for him in Kotkapura, he felt that it was no longer safe to remain in India, and so he departed on 11 May 2010 for Hong Kong where he overstayed, and upon his discharge from prison for possession of forged documents, he raised his torture claim which was later taken as a non-refoulement claim, for which he completed a Non-refoulement Claim Form on 17 June 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.     

6.   By a Notice of Decision dated 11 September 2015 the Director of Immigration (“the 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 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 Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

7.   In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the risk of harm from Uncle Gurmeet to the Applicant upon his return to India as low due to the absence of past ill-treatment from him, that his problem with his uncle was a private family land dispute 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 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 working experience 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 his uncle to locate him.

8.  On 21 September 2015 the Applicant 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 10 May 2016 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board.  On 3 March 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board accepted the Applicant’s account of dispute with his uncle over a land in his home village, but found that he had not suffered any ill-treatment under any of the proscribed harm, that state/police protection as well as reasonable internal relocation alternatives are available that it would not be unreasonable for the Applicant to safely relocate elsewhere in India that his non-refoulement claim for protection failed on all applicable grounds.   

10.  By a Notice of Further Decision dated 29 June 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”).

11.  On 13 February 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date and letter dated 21 June 2018 he merely repeated his claim that his life would be in danger in his home country and asked that he be allowed to remain in Hong Kong until his problems are solved.

12.  The Applicant was by then also seriously late 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.

13.  As the last day of the three-month period for the Applicant to file his Form 86 fell on 3 June 2017, he was therefore more than eight months late with his intended challenge of the Board’s decision, and that he would still be more than four months late for the unlikely challenge of the further decision of the Director as his claim clearly did not engage BOR 2 risk at all; and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason of 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 2; and AW v Director of Immigration [2016] 2 HKC 393.

14.  In the Applicant’s case, a delay of more than eight months must be considered as very substantial or excessive, for which he did not provide any explanation, nor did he request for any oral hearing for his application.  As such I do not accept that he has provided any good reason for his serious delay.   

15.  As for the merit of his intended application, as noted he did not provide any ground for his intended challenge but merely repeated his claim.  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.

16.  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.

17.  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.

18.  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