Case Document

100%Judiciary

HCAL 829/2017

[2018] HKCFI 2067

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 829 of 2017

BETWEEN

	Simranjit Singh	Applicant
	and
	Director of Immigration	Putative Respondent
	and
	Torture Claims Appeal Board / Non-Refoulement Claims Petition Office	Putative Interested Party

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 Applicant in open court;

Order by Deputy High Court Judge Bruno Chan:

(1) An extension of time for the application for leave to apply for judicial review against the decision of the Director of Immigration made on 30 June 2017 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 29-year-old national of India who entered Hong Kong on 9 October 2014 with permission to remain as a visitor up to 11 October 2014 when he did not depart and instead overstayed until 4 March 2016 when he surrendered to the Immigration Department and lodged a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his paternal uncle over a land dispute. He was then released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Noshera Majha Singh, Gurdaspur District, Punjab Province, India. After leaving school he worked in his family’s farmland owned by his father and in between had also worked as a driver in Saudi Arabia for two years.

3.One day in mid-2014 whilst he was working in his father’s farmland his paternal uncle approached him and declared that he was the true owner of the land and demanded that it be returned to him. After his uncle left, the Applicant checked with the authorities which confirmed that the land was registered in his father’s name and therefore rejected his uncle’s demand.

4.About a week later when his uncle again demanded that the land be given to him, the Applicant and his brother felt annoyed and together they roughed him up and drove him away, but as he was leaving his uncle swore that he would kill them.

5.Upon being told of the incident, the Applicant’s father became concerned for the Applicant’s safety as his paternal uncle was an influential man in the village with political connections, and advised him to leave the village, and so the Applicant left to take shelter at his friend’s place in Chandigarh where he stayed for two months without any incidents, but when he was advised by his friend to leave Pakistan for Hong Kong, he therefore departed for Delhi on 7 October 2014, and from there he flew to Thailand and then to Hong Kong where he overstayed and subsequently lodged his non-refoulement claim.

6.Whilst he was released on recognizance pending the determination of his claim, the Applicant was arrested by police on 10 August 2016 for undertaking employment without permission of the Immigration Department for which he was subsequently convicted and sentenced to imprisonment for 15 months, during which he completed a Non-refoulement Claim Form (“NCF”) on 12 June 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.By a Notice of Decision dated 30 June 2017 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 Claim”), risk of his 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”).

8.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the risk of harm to him upon his return to India as low due to the absence of any past ill-treatment from his paternal uncle other than his verbal threats made on one occasion, that there was no evidence of any real intension on his part to kill the Applicant who was after all not the legal owner of the land, that in the absence of 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”) 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 2.9 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied young man with working experience to move to other area away from his home district such as Mumbai or Bangalore where it would be difficult if not impossible for his uncle to locate him.

9.The Applicant then filed his appeal to the Torture Claims Appeal Board (“The Board”) against the Director’s decision, but in his written representation dated 13 July 2016 he changed his claim significantly that it was in fact his neighbor who coveted his land by sending men to attack him and making false claims to police against him that he had to run for his life and to seek protection in Hong Kong (paragraph 21 of the Board’s decision), and when he was asked by the Adjudicator at his oral hearing on 21 September 2017 about the discrepancies between his latest version and that recorded in his NCF before the Director, he replied that he had forgotten to mention it in his NCF or to his lawyer. The Board proceeded to consider his evidence and additional facts of his claim at the hearing as well as his answers to questions put to him by the Adjudicator. On 29 September 2017 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board upon hearing the Applicant in evidence found such discrepancies in his claim so incredible that none of the events as asserted could be acceptable, that even if they were true that his problem with his uncle or his neighbor stemmed from the land dispute which was by nature a private matter which has nothing to do with any of the applicable grounds, that his claimed risk is in the circumstances unlikely to materialize and hence his fear is not well-founded, and concluded that he has failed to establish that he is entitled to non-refoulement protection in Hong Kong on any of the applicable grounds.

11.On 31 October 2017 the Applicant filed his Form 86 (which he dated 6 October 2017 but actually filed on 31 October 2017) for leave to apply for judicial review of the decision of the Director only instead of the more recent decision of the Board, of which he confirmed at his oral hearing before me, but no ground for seeking relief was contained in his Form, and in his supporting affirmation filed on 31 October 2017 he simply deposed that:

“I am not satisfied with the Immigration Department decision.”

12.For judicial review of the Director’s decision made on 30 June 2017 the Applicant would be late with his application by about one month 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. The Applicant did not provide any explanation for his delay which cannot be said to be insignificant.

13.If on the other hand he had intended to challenge the Board’s decision as well notwithstanding his clarification at his oral hearing, he would be within time, but either way the fact is that he has not put forward any ground for his intended challenge such as any legal error or procedural unfairness or irrationality in either of the decisions at all.

14.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim, as 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 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 being 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 Re Litoun Mounsy [2018] HKCA 537.

15.Further, if his intended challenge were indeed only against the Director’s decision, in which it was also established that the risk of harm in his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, there is therefore no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins and Anor [2013] 1 HKC 526.

16.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.

17.For these reasons and notwithstanding having extended time for his application, 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 to extend time, his application is accordingly hereby dismissed.

Dated the 5^th day of October 2018.

	(NG Ka-wing)
	for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or his solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 5 October 2018 Simranjit Singh Applicant’s ref. no.: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 5 October 2018 Director of Immigration Putative Respondent’s ref. no.: QA T/C 1143/17 (Formerly RBCZ/12558/16) (T1 S65) Torture Claims Appeal Board / Non-Refoulement Claims Petition Office Putative Interested Party’s ref. no.: USM 7803/17/7/184/IN1481 Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)