Gurjit Singh v. Director of Immigration

HCAL 828/2017

[2019] HKCFI 772

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 828 of 2017

BETWEEN

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 the Applicant being present / absent 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 of the decision of the Director of Immigration dated 3 August 2016 and 16 June 2017 refused; and

2.  leave to apply for Judicial Review refused.

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/she 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 38-year-old national of India who arrived in Hong Kong on 16 November 2008 with permission to remain as a visitor up to 30 November 2008 but he did not depart and instead overstayed until he was arrested by police on 17 March 2009.  After being referred to the Immigration Department for investigation, he lodged a torture claim which was subsequently rejected and with his appeal also dismissed by the Torture Claims Appeal Board (“the Board”), he then lodged a non-refoulement claim with the Immigration Department on the basis that if he returned to India he would be harmed or killed by his uncle and his sons over certain land dispute.  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Village Chak Jeenra, Tehsil Dharamkot, District Moga, Punjab, India.  After leaving school he first worked as a farmer on a piece of farmland which he inherited from his father, and also worked as a driver in his village.

3.One day in early 2008 his paternal uncle and his two sons who were all farmers told the applicant that they wanted to farm on his land but were refused by the applicant.  However two months later they brought machines and workers onto the applicant’s land and started cultivating the land, and although they did stop doing so after the applicant complained to the village head, about a month later they resumed working on the applicant’s land despite his protests, and two months later some men came to the applicant’s home to demand that he transfer some of his interest in the land to his uncle or else he would be killed, and when the applicant refused, they proceeded to attack him and his brother that caused injuries to the applicant’s back which required medical treatment in the hospital.

4.A few months later in October 2008 his uncle and sons again threatened to kill the applicant over his land, and when the village head was no longer able to help due to his uncle’s influence in the village, and as the applicant felt it was no longer safe to remain in India, he therefore departed for Hong Kong in November 2008 where he overstayed and subsequently lodged his non-refoulement claim after his torture claim was rejected, and upon obtaining legal representation from the Duty Lawyer Service he completed a Supplementary Claim Form (“SCF”) on 27 May 2016 and attended screening interview before the Immigration Department.

5.By a Notice of Decision dated 3 August 2016 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 torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap 383 (“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 assessed the level of risk of harm from his uncle upon his return to India as low as the evidence shows that his uncle just wanted to occupy the farmland without any real intention to kill the applicant, that their dispute was a private domestic one 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”) 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 adult with work experience to move to other area away from his home district such as Chandigarh where it would be difficult if not impossible for his uncle to locate him.

7.By a Notice of Further Decision dated 16 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”).

8.By then the applicant was already in the process of appealing to the Board against the earlier decision of the Director, which appeal he filed on 15 August 2016, and for which he attended an oral hearing on 2 August 2017 before the Board but declined to testify or answer questions put to him by the adjudicator for the Board.  On 18 August 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.In its decision the Board found that the applicant has not suffered any severe injury or serious harm that would place him within any of the applicable grounds for non-refoulement protection, and that reasonable internal relocation alternatives are available to the applicant in India that it fails to see how his uncle would have the means or resources to locate him all over the vast territory of India, or even if he indeed has huge manpower and resources that why he would want to do so in the circumstances.

10.On 31 October 2017 the applicant filed his Form 86 for leave to apply for judicial review of the Director’s decision, but no ground for seeking relief was given in the Form nor did he request for any oral hearing, and in his supporting affirmation of the same date he merely deposed that:

“ The decision of the Director of Immigration was unreasonable in that he failed to consider all the matters raised in my claim and/or give adequate reasons for his decision.”

11.If indeed it was the Director’s decisions that he intended to challenge, the applicant would be way out of time by almost one year with the first decision, whilst with the second decision he would still be late by about one and a half months, 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 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 at all for his delay.

12.If on the other hand that he had in fact intended to challenge the Board’s decision for dismissing his appeal against the Director’s decisions, he would be within the period stipulated by Order 53, but either way what he has stated in his supporting affirmation above are just some very vague assertions without any particulars or elaboration, and of which I do not find to be reasonably arguable.

13.Nevertheless 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.

14.The fact is that as it has been established by both the Director and the Board 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 in the circumstances of his case simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.  

15.In the premises 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 extending time regarding the decisions of the Director, I accordingly refuse his leave application.

Dated the 22^nd day of March 2019.

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