Gagandeep Singh v. Torture Claims Appeal Board

HCAL 2308/2020

[2021] HKCFI 1980

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2308 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 27-year-old national of India who arrived in Hong Kong on 13 June 2014 with permission to remain as a visitor up to 27 June 2014 when he did not depart and instead overstayed, and on 22 September 2014 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his paternal uncle over a land dispute in his home district. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Bibipur, District Mohali, Punjab, India before later moving with his family to neighboring Village Kalitran, Tehsil where his father and his uncle owned a farmland in equal share inherited from his grandfather.

3.In 2000 his father moved the family to Chandigarh for new employment, leaving his share of the farmland in the care of the Applicant’s uncle.

4.Upon the Applicant graduating from college with a diploma in Electrical Engineering, his father decided to sell his share of the farmland and in 2014 sent the Applicant to Kalitran to sell the land which his uncle had offered to buy but when his low offer was rejected by the Applicant’s father, his uncle became furious and threatened the Applicant not to sell the land to anyone else except him, and when the Applicant refused, his uncle then sent men to beat him with a wooden stick that he lost consciousness and was brought to a hospital by some passer-by for medical treatment.      

5.Upon his charge from hospital, the Applicant became fearful for his life, and so on 12 June 2014 he departed India for Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 23 February 2018 and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

6.By a Notice of Decision dated 12 March 2018 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 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 all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real risk of him being harmed or killed by his uncle or his followers upon his return to India due to the low intensity and frequency of past ill-treatment from them, that it was a family dispute between his family and his uncle 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”) 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 2.9 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied and highly educated young man to move 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 his uncle to locate him.

8.On 23 March 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, for which the Board did not hold any oral hearing and proceeded to deal with his appeal in his absence and on paper. On 25 March 2020 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 threats from his uncle over a land dispute in his home district between his father and his uncle but in the absence of any official involvement in what was essentially a private family dispute that state or police protection would be available to the Applicant upon his return to India as well as reasonable internal relocation for him to move safely to other areas away from his home district without any risk of being located by his uncle that his claim for non-refoulement protection failed on all applicable grounds.

10.On 24 November 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 or in his supporting affirmation of the same date in which he merely repeated his claim that his life would still be in danger in his home country and that he wants to stay in Hong Kong until his problem back home has been resolved 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 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 25 June 2020, the Applicant was therefore 5 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.

13.In the Applicant’s case, a delay of 5 months must be considered as very substantial and excessive, for which he did not provide any explanation in his Form or affirmation, 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 do not see any good reason for his serious delay. 

14.As for the merits, if any, of the intended application, as noted above the Applicant has also failed to put forth any proper ground for his intended challenge, 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 eth Applicant, I do not find any reasonably arguable basis or merits in his intended application either.

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 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.     

17.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, the Applicant recently on 16 June 2021 wrote to court to request to withdraw his application as his problem in his home country has now been resolved and that he wants to return home as soon as possible.

19.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 serious delay, and given his latest confirmation that his problem has been resolved and hence the basis for his claim no longer exists, I therefore accede to his request and accordingly dismiss his leave application.

Dated the 6^th day of July 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