Harpinder Singh v. Torture Claims Appeal Board

HCAL 1231/2020

[2021] HKCFI 436

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1231 of 2020

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:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 35-year-old national of India who entered Hong Kong illegally on 19 July 2015 and surrendered to the Immigration Department on 21 July 2015 when he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his neighbor over their land dispute. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Mullianwal, Gurdaspur, Dhariwal, Punjab, India. After leaving school he worked as a farmer in his father’s farmland in his home village.

3.In 2007 the Applicant had a dispute with his neighbor over the spilling of water from his father’s farmland onto his neighbor’s during which his neighbor made death threats against him, and so the Applicant in 2008 fled India for Hong Kong and raised a torture claim which he subsequently withdrew in 2012 after his family had settled the dispute with the neighbor, and returned to his home in India where he resumed farming on the farmland in his home village which he inherited from his father after his father’s death.

4.In 2014 his neighbor approached him with an offer to purchase his farmland, but when he refused, his neighbor became furious and attacked him with his men with wooden sticks and caused him injuries which required medical treatment.

5.After the attack the Applicant became fearful for his life, and fled to his in-laws’ place in District Mukerian in Hoshiarpur State where he stayed without incidents, but when he later heard that his neighbor and his men were looking for him everywhere, he felt it was no longer safe to remain in India, and so he fled to New Delhi and on 11 July 2015 departed India for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 10 July 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.     

6.By a Notice of Decision dated 30 July 2018 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 risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“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”).

7.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real and substantial risk of him being harmed or killed by his neighbor upon his return to India due to the low intensity and frequency of past ill-treatment from him, that it was a private personal land 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 Mumbai or Kolkata where it would be difficult if not impossible for his neighbor to locate him.

8.On 15 August 2018 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 12 November 2019 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 30 December 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found significant inconsistencies and lack of credibility in the Applicant’s evidence that it did not accept that he is a witness of truth or that he was involved in a land dispute with his neighbor or had been threatened by his neighbor or that he fears returning to India for the reasons he has claimed or for any other reason or that he would face any risk upon his return to India that his claim for non-refoulement protection failed on all applicable grounds.   

10.On 19 June 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely attached a copy of the decision but without putting forward any proper ground for his intended challenge.

11.By then the Applicant was also out of time with his 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.

12.As the last day of the three-month period for the Applicant to file his Form 86 fell on 30 March 2020, he would have been late for 2 ½ months but for the fact that it also fell in the middle of the general adjourned period (“GAP”) for all court proceedings announced by the Judiciary on 29 January 2020 due to the Covid-19 pandemic with reduced operation hours and limited people flow at the High Court Registry until 3 May 2020, which would in all fairness put his actual delay to about 6 weeks.

13.In considering whether to extend time for late applications, 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.

14.In the Applicant’s case, a delay of some 6 weeks in the circumstances noted above still cannot be considered as insignificant, for which he did not provide any explanation in his supporting affirmation, nor did he request any oral hearing for his application, and as the court record shows that the decision was sent on the same day to his last reported address without being returned through undelivered post, I do not see any good reason for his delay.

15.As for the merits, if any, of his intended application, as noted above the Applicant has not put forward any proper grounds for his intended application. 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.

16.Essentially the Board rejected the Applicant’s claim on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 44 – 71 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or irrationality 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.   

17.The fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim if true 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.     

18.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.

19.Furthermore, on 4 December 2020 the Applicant filed an affirmation requesting to withdraw his application as he wants to go back to his home country.

20.In the premises, and as I am not satisfied for the reasons given 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 delay or for extending time for his late application, and in view of his latest confirmation of his wish to withdraw his application and to return to his home country, I accordingly accede to his request and dismiss his leave application.

Dated the 22^nd day of February 2021.

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