Baljinder Singh v. Torture Claims Appeal Board

HCAL 1535/2019

[2021] HKCFI 797

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1535 of 2019

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 37-year-old national of India who last arrived in Hong Kong on 24 May 2005 with permission to remain as a visitor up to 7 June 2005 when he did not depart and instead overstayed and was arrested by police on 7 September 2006. After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to India he would be harmed or killed by his wife’s family who were opposed to their marriage and blamed him for her subsequent death, and after his torture claim was rejected, he then sought non-refoulement protection on the same basis. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Model Town, Ludhiana, Punjab, India. While studying in college in Chandigarh, he met and dated his wife from a wealthy and influential family with political connections, but when her family were against their relationship, they secretly carried on with their relationship and in 2004 married each other in Ludhiana without informing their family, and thereafter they continued to reside in their own home to avoid suspicion from their family.

3.However, one day in February 2005 the Applicant was informed by a friend that his wife had become seriously ill and was taken to the hospital where she was discovered to be pregnant with the Applicant’s child, and as a result their marriage was discovered by her family, and then several weeks later in April 2005 his friend also told him that his wife had died and that her family had made false charges to the police against him, and as a result the Applicant fled from his home district to hide in Chandigarh, but one day after he was ambushed and attacked by his wife’s brothers who beat him with hockey sticks and knives, threatening to kill him for their sister’s death until some passers-by intervened when the Applicant managed to make his escape.      

4.After the attack the Applicant became fearful for his life, and fled to New Delhi, and from there he subsequently departed India for Hong Kong where he overstayed, and upon his arrest he then raised his torture claim, and after it was rejected by the Immigration Department, he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 1 February 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.While released on recognizance pending the determination of his claim, the Applicant had been arrested by police on 6 separate occasions on various criminal charges including theft, possession of dangerous drugs and equipment fit for using dangerous drugs for which he was convicted and sentenced to prison for various terms totaling more than 6 years and 9 months.      

6.By a Notice of Decision dated 27 February 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk but including 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 assessed the level of risk of harm from his wife’s family upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that their dispute with him was a private personal dispute 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 or Mumbai where it would be difficult if not impossible for his wife’s family to locate him.

8.On 1 March 2018 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 14 September 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 27 December 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board accepted the Applicant’s claim of fear of harm or ill-treatment from his wife’s family over their dispute, but found in the absence of any reliable evidence of any interest of the police or authorities in him or of any official involvement that state/police protection would be available to him upon his return to India as well as reasonable internal relocation for him to safely move to other part of India without any risk of being located by his wife’s family that his claim for non-refoulement protection failed on all applicable grounds.    

10.On 4 June 2019 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 repeated his claim that he cannot go back to his home country or else he would be killed by his enemy but without putting forth any proper ground for his intended challenge.

11.He was by then also out of time with his intended 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 him to file his Form 86 fell on 27 March 2019, the Applicant was therefore more than 2 months 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 months must be considered as substantial, for which he did not provide any explanation, and as the record shows that the Board’s 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 significant delay.

14.As for the merits, if any, of his intended application, as noted above, the Applicant has failed to put forward any proper ground to challenge the Board’s decision. As such 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 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 both the Director and the Board in their respective 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, 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.Furthermore, on 14 January 2021 the Applicant wrote to the court request to withdraw his application as there is no danger for him to return to his home country.

19.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 to extend time for his late application, and in view of his latest confirmation that it would be safe for him to return to India, I accordingly dismiss his leave application.

Dated the 25^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