Govind Singh v. Torture Claims Appeal Board

HCAL 977/2018

[2021] HKCFI 740

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 977 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 the Applicant 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 21 January 2016 refused; and

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

Observations for the Applicant:

1.The Applicant is a 43-year-old national of India who arrived in Hong Kong on 31 July 2015, and 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 paternal uncle and sons due to their dispute over a piece of land in their home village and also over their political issues. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Bakhta, Jammu & Kashmir, India. After leaving school he ran a stationary business in his home village, got married and raised a son, and supported the political party India Congress Party (“INC”).

3.His paternal uncle had a long lasting dispute with his father over how to divide their ancestral land in their home village which had been left vacant for years and which led to many conflicts within the family.

4.The paternal uncle had 3 sons who supported the political party Bharatiya Janata Party (“BJP”), and during the 2014 election campaign between the two rival parties INC and BJP, they would frequently threaten and harass the Applicant for supporting INC, and had on several occasions even assaulted him, but when their threats and harassments persisted even after the election, the Applicant did not seek any police assistance but moved his family to another town, and in 2015 he departed India for Hong Kong, and when he was refused entry by the Immigration Department, he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 29 September 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

5.By a Notice of Decision dated 27 October 2015 the Director of Immigration (“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 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”).

6.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 uncle and his cousins upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that their disputes were private family matters 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 his uncle or cousins to locate him.

7.On 11 November 2015 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 30 December 2015 before the Board during which he however refused to answer many of the questions raised by the Adjudicator in respect of his claim. On 21 January 2016 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board raised many issues and questions in respect of the Applicant’s assertions of events allegedly occurred to him in India prior to his departure but which the Applicant refused to answer or clarify despite being invited to do so during his appealing hearing that the Board found that he had failed to establish his claimed fear of harm to him upon his return to India, and concluded that in any event in the absence of any evidence of any state or official involvement that state/police protection would be available for the Applicant to safely return to India that his claim for non-refoulement protection failed on all applicable grounds.    

9.On 1 February 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 22 February 2017 found that the Applicant had failed to establish a personal and real risk of his absolute and non-derogable rights under HKBOR being violated upon his return to India and accordingly rejected his claim on BOR 2 Risk.

10.The Applicant did not appeal against that further decision of the Director, but on 30 May 2018 he filed his Form 86 for leave to apply for judicial review of the earlier decision of the Board, and in his supporting affirmation of the same date he repeated his claim that his life would be in danger upon his return to India, and put forward the following grounds for his intended challenge:

(1)  that the Board failed to conduct inquiries from reliable sources and did not fully study the ground realities of his case and aftermath of being forced to return to his home town;

(2)  that the Adjudicator just refused his appeal without any reasonable ground; and

(3)  that the Board’s decision is betrayed by a bias and formulaic approach unlikely to be able to fairly assess the danger to his life in the light of new law that relocation is practically impossible as the fight against terrorism touches new high that state protection in fact is non-existent.  

11.However, by then the Applicant was seriously out of time with his application, 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.

12.As the last day of the three-month period for the Applicant to file his Form 86 fell on 21 April 2016, the Applicant was therefore more than 2 years late with his 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: AW v Director of Immigration [2016] 2 HKC 393.

13.In the Applicant’s case, a delay of more than 2 years must be considered as extremely substantial and excessive, for which he did not appear to have provided any proper explanation in his supporting affirmation other than some mention of his previous failed application for legal aid which cannot in my view be accepted as a valid reason for procedural breaches, let alone such a serious one, while at the hearing of his application he simply claimed not to know of the rule requiring the making of his application within the prescribed period. As such I do not find any good reason for his such serious delay.

14.As for the merits, if any, of his intended application, the Applicant’s proposed grounds for his intended challenge all appear to me just some broad and vague assertions of his without any proper details or particulars or elaborations as to how they applied to the Board’s decision, and given the clear and correct findings of both the Director and the Board that his claimed risk of harm was a localized one without any state or official involvement that state/police protection would be available upon his return to his home country, I do not find any of his complaints relevant to his claim or that they would assist his case, nor would they be reasonably arguable for his intended challenge.      

15.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.In the Applicant’s case, the fact is that it has been established by the Director in his decision that the risk of harm in his 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.     

17.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.

18.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 19^th day of March 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