Dhessi Gurcharanjeet Singh v. Torture Claims Appeal Board

HCAL 1256/2018

[2021] HKCFI 1745

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1256 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 18 October 2017 refused; and

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

Observations for the Applicant:

1.The Applicant is a 37-year-old national of India who arrived in Hong Kong together with his wife and son on 6 February 2015 with permission to remain as visitors up to 20 February 2015 when they did not depart and instead overstayed, and on 23 February 2015 they surrendered to the Immigration Department and jointly raised a non-refoulement claim on the basis that if they returned to India they would be harmed or killed by some local villagers over certain election dispute. They were subsequently released on recognizance pending the determination of their claim, during which his wife gave birth to their daughter on 21 August 2016 and for whom they also raised a similar claim on the same basis and to be assessed jointly with theirs.  

2.The Applicant was born and raised in Kandyal, Moga, Punjab, India. After leaving school he worked as a farmer, married his wife and raised a family of a son in his home district.

3.In 2013 with his support his cousin won a local election in their home village, but afterwards when the Applicant together with other supporters were attacked by the losing candidate and his fellow villagers, and when further threats were made against him by those villagers, the Applicant felt it was no longer safe for him and his family to remain in India, and so on 6 February 2015 they departed for Hong Kong where they overstayed and subsequently raised their non-refoulement claim for protection, and upon the birth of their daughter they jointly completed a Non-refoulement Claim Form (“NCF”) for all four of them on 29 March 2017 and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

4.By a Notice of Decision dated 26 May 2017 the Director of Immigration (“Director”) rejected the claim of the Applicant and his family on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of their 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”).

5.In his decision the Director took into account all the relevant circumstances of the claim of the Applicant and his family and assessed the level of risk of harm from those villagers upon their return to India as low due to the low intensity and frequency of past ill-treatment from them, that their problems with their fellow villagers were private election disputes without any official involvement that state or police protection would be available to the Applicant and his family if resorted to, and that reliable and objective Country of Origin Information (“COI”) shows 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 safely with his family to other parts of India away from his home district in large cities such as Delhi where it would be difficult if not impossible for those villagers to locate them.

6.On 8 June 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) for himself and his family against the Director’s decision, and for which the Board did not hold any oral hearing and proceeded to deal with their appeal in their absence and on paper, and on 18 October 2017 it dismissed their appeal and also confirmed the Director’s decision.

7.In its decision the Board accepted the Applicant’s claim of threats from his fellow villagers but found their dispute a private personal matter within their home village without any state or official involvement that state/police protection would be available to the Applicant and his family upon their return to India as well as reasonable internal relocation for them to move safely to other areas away from their home district without any risk of being located that their claim for non-refoulement protection failed on all applicable grounds.  

8.On 3 July 2018 the Applicant filed his Form 86 for himself only 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 because his life there would still be in danger but without putting forward any proper ground for his intended challenge, nor was he able to do so at the hearing of his application.

9.By then the Applicant was also 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 first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

10.As the last day of the three-month period for him to file his Form 86 fell on 18 January 2018, the Applicant was therefore 5 ½ 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 HKCA 393.

11.In the Applicant’s case, a delay of 5 ½ months must be considered as very substantial and excessive, for which he did not provide any explanation either in his supporting affirmation or at the hearing of his application, and as the record shows that the decision was sent on the same day to his last reported address without being returned through undelivered post, I am unable to see any good reason for the Applicant’s serious delay.  

12.As for the merits, if any, of his intended application, as noted above the Applicant did not provide any proper grounds in his Form or supporting affirmation, nor was he able to do so at the hearing of his application. 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 either.

13.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.

14.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 parts 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.     

15.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.

16.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 17^th day of June 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