Case Document

100%Judiciary

HCAL 913/2018

[2020] HKCFI 2578

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 913 of 2018

BETWEEN

	Gorpreet Singh	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent

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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

1. extension of time for the application for leave to apply for Judicial Review of the decisions of Torture Claims Appeal Board dated 8 April 2015 and 15 February 2018 respectively refused; and

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

Observations for the Applicant:

1.The Applicant is a 39-year-old national of India who arrived in Hong Kong on 1 March 2014 but when he was refused entry by the Immigration Department, he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his father-in-law who blamed him for his daughter’s death. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Panj Grain Kalan, District Faridkot, Punjab, India. After leaving school, he went to work as a driver in Kuwait. On one occasion in 2009 when he returned to his home district in India for holiday, he met his wife whom he courted for two weeks, and from whom he learnt that her father was a local leader of the political party Shiromani Akal Dal (“SAD”) and had arranged for her to marry the son of another SAD leader which was against her wish, and that she wanted to marry the Applicant instead.

3.Knowing that her father would object to their marriage, and so one day in October 2009 they went to the court in Faridkot to register their marriage, and when his father-in-law found out about it, he became furious and threatened to kill the Applicant.

4.As a result the Applicant and his wife moved to various places to hide form her father, but one day in January 2013 while they were somewhere at a bus stop, a vehicle slammed into them and killed his wife, of which the Applicant suspected that it was arranged by his father-in-law to kill him but instead killed his daughter by mistake.

5.Fearing that his father-in-law would continue to go after him and to take revenge against him for his daughter’s death, the Applicant therefore departed India on 28 February 2014 for Hong Kong, and when he was refused entry, he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 23 April 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.By a Notice of Decision dated 11 July 2014 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 (“the Ordinance”) (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance Cap 383 (“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 level of risk of harm from his father-in-law upon his return to India as low due to the low intensity and frequency of past ill-treatment from him, 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 spread across a vast territory 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 where it would be difficult if not impossible for his father-in-law to locate him.

8.On 4 August 2014 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 22 January 2015 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 8 April 2015 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board found serious inconsistencies and discrepancies in the Applicant’s evidence as to his claim that it did not accept his alleged threats from his father-in-law as plausible, that in any event in the absence of any evidence of state or official involvement in his private and personal dispute with his father-in-law that state/police protection would be available to the Applicant upon his return to India as well as reasonable internal relocation within India for him to move safely to other places away from his home district without any risk of being located by his father-in-law that his claim for non-refoulement protection failed on all applicable grounds.

10.On 14 December 2016 the Director on his own initiative invited the Applicant 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”), and in the absence of any response from him, the Director by a Notice of Further Decision dated 4 January 2017 again rejected the Applicant’s claim on all applicable grounds including BOR 2 risk.

11.On 18 August 2017 the Applicant again lodged an appeal to the Board against the Director’s Further Decision, but on this occasion his notice of appeal was filed well outside the 14-day period required by section 37ZS of the Ordinance, and in pursuance of section 37ZT(2) of the Ordinance, the Board proceeded to decide as a preliminary decision without a hearing whether to allow the Applicant’s late filing of his appeal.

12.By a Decision dated 15 February 2018, the Board refused to allow the Applicant’s late filing of his notice of appeal upon finding that his 7 months’ delay was serious and substantial, that he had no good reason for his such serious procedural breach, and that it was satisfied that the late filing of his notice of appeal can justly be rejected.

13.On 24 May 2018 the Applicant filed his Form 86 for leave to apply for judicial review of a decision of the Board which he dated on 21 May 2018 but which does not correspond to those of either decision of the Board, and no ground for seeking relief was given in his Form either, and in his supporting affirmation of the same date he merely repeated his claim that his life would be in danger if returned to his home country without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application.

14.For his intended challenge of either decision of the Board, the Applicant would still be out of time, as order 53 rule 4(1) of the High Court Ordinance, 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.

15.If it is the earlier decision of the Board that he intends to challenge, the last day of the three-month period for him to file his Form 86 would fall on 8 July 2015 and he would be almost 3 years late, and if it is the later decision, then the deadline would be 15 May 2018, and the Applicant would only be 9 days late with his application. Either way, 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: AW v Director of Immigration [2016] 2 HKC 393.

16.In the Applicant’s case, as already noted a delay of almost 3 years with the earlier Board’s decision must be considered as extremely substantial and excessive, while for the second decision the delay would have been much less significant, but either way the Applicant did not provide any explanation. As such I am not satisfied that there is any good reason for his delay.

17.As for the merits, if any, of his intended application, as noted above the Applicant failed to put forward any proper ground for his intended challenge of either decision, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decisions, I do not find any reasonably arguable basis to challenge the finding of the Board.

18.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 the 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.

19.In the Applicant’s case, the Board already in its first decision of 8 April 2015 rejected his non-refoulement claim for the thorough and detailed analysis and reasoning set out in the decision referred to above, of which the Applicant never launched any challenge by any application for judicial review until perhaps now, and as noted above at such serious delay that I do not find any good reason or justification to extend time for him to do so.

20.As for the Board’s second decision refusing to allow the Applicant’s late filing of his appeal regarding his BOR 2 risk, the Board was in my view correct to find his procedural breach serious and substantial, and that there was no reason of any special circumstances that would make it unjust not to allow the late filing of his appeal.

21.While the Board may appear to have not taken account of the merits of his appeal in that decision, of which the Court of Appeal has held in Re Qasim Ali [2019] HKCA 430 to be necessary regardless of the procedural breaches or the lack of explanation therefor, the fact is that the Applicant’s non-refoulement claim on all other applicable grounds had earlier already been rejected by the Board, of which clearly were relevant matters of fact within the knowledge of the Board, and as the Applicant in his second appeal to the Board merely repeated the same claim in his late notice of appeal (see section 2 of his notice of appeal) without any additional facts which may be relevant to his BOR 2 risk, there was therefore in my judgment simply nothing in the merits of his second appeal that the Board had not already considered and rejected in its earlier decision.

22.In any event, on the basis of the primary facts of the Applicant’s claim, and in the light of the scope and threshold of a BOR 2 claim, there is in my judgment simply no room for engaging the BOR 2 ground, and in the absence of any error of law or procedural unfairness in this decision of the Board being clearly and properly identified by the Applicant, I do not find any merits in the Applicant’s intended challenge of this decision of the Board either.

23.Furthermore, the fact is that it has been established by both the Director and the Board in their earlier decisions 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.

24.In the premises and having considered both decisions of 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.

25.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review of either decision of the Board, and in the absence of any good reason for his delay in either case, I refuse to extend time and accordingly dismiss his leave application.

Dated the 15^th day of December 2020.

(TAM Kam-man)
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 15^th December 2020 Gorpreet 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 15^th December 2020 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 91/14/8/6/IN30 BOR 931/17/8/38/IN243 Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)