Chauhan Ram Pravesh v. Torture Claims Appeal Board

HCAL 865/2018

[2020] HKCFI 2659

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 865 of 2018

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 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 decision of Torture Claims Appeal Board dated 9 June 2017 refused; and

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

Observations for the Applicant:

1.The Applicant is a 32-year-old national of India who entered Hong Kong illegally on 8 August 2013 and surrendered to the Immigration Department on 2 September 2013 when he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his parents’ employer for refusing to work for him. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Nagaripar, Mau, Uttarpradesh, India where his parents and many other local villagers worked in a sugar cane factory owned by a local wealthy man Yadav and his family who treated their employees harshly and like slaves, and so after leaving school the Applicant refused to follow his parents’ footstep to work for Yadav, which offended Yadav who then demanded that he should like everybody else work for him, and when the Applicant refused, Yadav and his followers would scold his parents and made threats against him and his family, and on one occasion in May 2005 Yadav and his sons attacked the Applicant with hockey sticks that he lost consciousness and was subsequently brought to the hospital for medical treatments.

3.Upon his discharge from the hospital, the Applicant reported the incident to the local police, but when they failed to carry out any investigation, of which the Applicant suspected that they were under the influence of the Yadav family, and when the Yadav family subsequently made a false charge against him to the police, the Applicant fled to Baliya District where he stayed for 2 years without incidents before returning to his home district.

4.However, one evening in October 2007 while he was on his way home, the Applicant was ambushed and assaulted by Yadav’s men with hockey sticks until they were subsequently intervened by his family.

5.Fearing further assaults from the Yadav family, the Applicant therefore fled from his home district for Goa and later to Mumbai, but one day in 2013 when he suspected that he was being followed by men sent by Yadav, he felt it was no longer safe to remain in India, and so in August 2013 he departed for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 2 November 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.     

6.By a Notice of Decision dated 5 January 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 (“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 Yadav or his family upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that there is no reason why they would go through all the trouble to force someone like the Applicant to work for them or that after all these years that they would still have any adverse interest in him, that his problem with Yadav and his family was a private personal dispute between them 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 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 Yadav or his family to locate him.

8.On 12 January 2016 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 13 January 2017 before the Board during which he however declined to give any oral evidence or to answer any questions raised of his claim by the Adjudicator for the Board despite being advised to do so. On 9 June 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board found material changes in his earlier evidence and information given to the Director that it doubted the reliability of his claim, and in the absence of any evidence from the Applicant during his appeal hearing when he declined to explain or clarify those inconsistencies and discrepancies found by the Adjudicator in his previous information provided to the Director and when he for no valid cause or reason refused to answer any questions raised by the Adjudicator of his claim, the Board found the Applicant’s claim unreliable and incredible that it concluded that he failed to establish his claim for non-refoulement protection which failed on all applicable grounds.  

10.Meanwhile on 5 June 2017 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 the Applicant, the Director by a Notice of Further Decision dated 31 January 2018 again rejected the Applicant’s claim on the applicable grounds including BOR 2 risk.

11.On 26 February 2018 the Applicant again lodged an appeal to the Board against the Director’s decision regarding his BOR 2 claim, but as the Board found that he was then outside the 14-day period to file his notice of appeal as required by section 37ZS of the Ordinance, and in pursuance of section 37ZT(2) the Board proceeded to determine as a preliminary decision without a hearing whether to allow the late filing of the Applicant’s notice of appeal.

12.On 12 July 2018 the Board refused to allow the late filing of the Applicant’s notice of appeal upon finding that he was late by 6 days, that his explanation that he received the Director’s Further Decision late only on 23 February 2018 was not credible or acceptable, and that there were no other matters known to the Board or revealed by the factual basis of his claim which might amount to any special circumstances which might make it unjust not to allow the late filing of his notice of appeal.  

13.Meanwhile on 18 May 2018 the Applicant filed his Form 86 now before me for leave to apply for judicial review of the Board’s earlier decision of 9 June 2017, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely attached copies of the previous decisions and documents of his hearing bundle for his appeal before the Board without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application.

14.He was however by then also seriously out of time with his intended application, 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.As the last day of the three-months period for him to file his Form 86 fell on 9 September 2017, the Applicant was therefore more than 8 months late with his intended application, and in considering whether to extend time, the court shall have regards 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 AW v Director of Immigration [2016] 2 HKC 393.  

16.In the Applicant’s case, a delay of more than 8 months must be considered as very substantial and excessive, for which he did not provide any explanation in his affirmation, and as the record shows that the decision was sent to him on the same day at his last reported address which is the same as the one stated in his Form 86, I do not see any valid reason for his serious delay.

17.As for the merits, if any, of his intended application, as noted above the Applicant did not put forward any proper ground for his intended challenge, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.     

18.As it 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 rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 43 – 51 of its decision in the absence of any oral evidence or answers from him at his appeal hearing when he declined to do so despite being invited and advised by the Adjudicator that it was necessary for him to to deal with those problematic issues which the Board had over his information previously provided to the Director in respect of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board. 

20.Even if the Applicant were also to challenge the further decisions of the Director or the Board regarding their rejection of his BOR 2 claim, on the facts of his own case and in the light of the scope and threshold of a BOR 2 claim, there is simply no room for engaging the BOR 2 ground, and hence the Applicant’s intended challenge regarding that claim would have also failed.

21.The fact is that it has been established by the Director in his 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, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

22.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.

23.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 dismiss his leave application.

Dated the 30^th day of December 2020.

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