Gill Amrik Singh and Others v. Torture Claims Appeal Board

HCAL 296/2018

[2020] HKCFI 1511

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 296 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Order by Deputy High Court Judge Bruno Chan:

1.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 9 November 2017 refused; and

2.  the application for leave to apply for Judicial Review dismissed.

Observations for the Applicants:

1.The 1^st and 2^nd Applicants are husband and wife with the other 2 applicants being their children who are all national of India, and who arrived in Hong Kong on 23 October 2015 with permission to remain as visitors up to 6 November 2015 when they did not depart and instead overstayed until 9 November 2015 when they raised a non-refoulement claim for protection with the Immigration Department on the basis that if they returned to India they would be harmed or killed by their families for converting their religion from Sikhism to Christianity.  They were subsequently released on recognizance pending the determination of their claim.

2.Both the 1^st Applicant (“A1”) and the 2^nd Applicant (“A2”) were born and raised in Punjab, India as Sikhs who married each other in 2001 and lived in A1’s family in Ludhiana where their elder child, the 3^rd Applicant (“A3”) was subsequently born, and where A1 worked as a farmer and taxi driver to support the family.

3.In 2010 the couple went to UK where A2 studied for a diploma whilst A1 worked in a factory, leaving A3 in the care of A1’s family in Ludhiana.

4.While in UK the couple met some Christian friends and became interested in their religion and started to participate in their religious activities including weekly bible studies, but when they later expressed their decision to convert their religion to Christianity to their respective families, there were violent objections from both families who made all sorts of harassments and threats to them.   

5.In 2011 A2 became pregnant with the 4^th Applicant (“A4”) in UK but due to the constant harassments and threats from her family, her health suffered and was frequently hospitalized.  Eventually in December 2011 she successfully gave birth to A4 in UK.

6.In October 2012 the couple returned with A4 to their home in Ludhiana, India but were not welcome by their families who continued to harass and threaten them over their religious conversion, and that A1’s parents even demanded that he divorced A2 for bringing dishonor to their family and threatened to kick them out.  As a result A2 returned to stay at her parents’ home but where she was also subjected to harassments and threats from her family.

7.In 2015 A1 and A2 heard that their families were planning to carry out honour killings against them, and as their reports to the police were to no avail as their fathers were influential in their home village with political connections and that the police just treated their disputes as private family matters, they became fearful for their life and decided to leave India, which they did on 23 October 2015 when they departed with their children for Hong Kong where they subsequently overstayed and raised their non-refoulement claim for protection, for which they completed a Non-refoulement Claim Form and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).       

8.By a Notice of Decision dated 29 December 2016 the Director of Immigration (“the Director”) rejected the Applicants’ claim on all the applicable grounds including risk of torture under part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), 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”).

9.In his decision the Director took into account of all the relevant circumstances of the Applicants’ claim and found no substantial grounds for believing that there will be any real and substantial risk of the Applicants being harmed by their families upon their return to India in the absence of any reliable evidence in support of their claim, that in any event in the absence of any official involvement that state or police protection would be available to the Applicants 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 A1 as an able-bodied adult with working experience to move safely with his wife and children to other part of India away from his home district in places such as Kerala State with a large population of Christians where they can safely live and work without any risk of harm from their families or the Sikh community.

10.The Applicants then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which they attended 2 oral hearings on 27 July 2017 and 5 September 2017 before the Board with legal representation from DLS during which both A1 and A2 gave evidence and answered questions put to them by the adjudicator for the Board and with submissions made on their behalf by their lawyer from DLS.  On 9 November 2017 their appeal was dismissed by the Board which also confirmed the decision of the Director.

11.In its decision the Board found exaggerations in the Applicants’ evidence as to their alleged harassments and threats from their families but accepted that there may be risk that they will face harm from their families or the local Sikh community over their conversion from Sikhism to Christianity if refouled to India in their home area in Punjab, but considered it reasonable for them to relocate with their children to other areas such as the Kerala State which has a large population of Christians that their non-refoulement claim failed on all applicable grounds.    

12.On 26 February 2018 the Applicants 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 in their supporting affidavit of the same date they merely repeated that they cannot go back to their home country as their life would still be in danger, and asked that they be allowed to remain in Hong Kong until their problem has been solved.

13.By then the Applicants were also late with their Form 86, 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.

14.As the last day of the three-month period for the Applicants to file their Form 86 fell on 9 February 2018, they were therefore some 2 weeks late with their 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: see Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

15.In the Applicants’ case, a delay of 2 weeks cannot be said to be insignificant, for which they did not provide any explanation in their affidavit, nor did they request for any oral hearing for their application.  As such I do not accept that they have provided any reason for their delay.      

16.As for the merits of their intended application, as noted above they have not put forward any grounds for their intended challenge, and instead merely asked to be allowed to remain in Hong Kong until their problem back home has been solved.  In the absence of any error of law or procedural unfairness being identified by the Applicants, I do not see any merit in their intended application or any reasonably arguable basis to challenge the finding of the Board.

17.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 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.

18.Furthermore, as it has been established by both the Director and the Board in their respective decision that the risk of harm in their claim is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of India, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.       

19.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 Applicants’ claim.

20.For these reasons I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, and in the absence of any good reason for the delay, I refuse to extend time and accordingly dismiss their 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

Dated the 16^th day of July 2020. 

Form CALL-1