Singh Gurwinder and Others v. Torture Claims Appeal Board

HCAL 2013/2018

[2021] HKCFI 2462

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2013 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 (counsel for) the Applicant in open court / the Applicant being absent 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 8 May 2018 refused; and

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

Observations for the Applicants:

1.The Applicants are a married couple and their teenage son all of Indian nationality who arrived in Hong Kong on 11 March 2016 as visitors with permission to remain up to 26 March 2016 when they did not depart and instead overstayed, and on 29 March 2016 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 the 1^st Applicant’s uncle over some land dispute between their families in their home village. The Applicants were subsequently released on recognizance pending the determination of their claim.

2.The 1^st Applicant (“A1”) was born and raised in Mandi Gobindgarh, District Fatehgarh Sahib, Punjab, India where he worked as a farmer on his father’s farmland inherited form his grandfather and jointly owned with his paternal uncle, and where he subsequently married the 2^nd Applicant (“A2”) and raised a family of 2 sons including the 3^rd Applicant (“A3”).

3.In 2013 A1’s uncle demanded to have a greater share of the farmland, and when it was refused by A1’s father, his uncle became hostile towards his family, and later when his father transferred the share of the farmland to A1, his uncle became furious and made threats against A1, and after several incidents when A1 was assaulted by his uncle and sons, A1 became fearful for his safety and moved his family to Kolkata where he made arrangements to depart India for Hong Kong, and asked his mother in the home village to bring their passports to meet them at the Delhi Airport.

4.On 9 March 2016 A1 and his family arrived at the Delhi Airport for their departure, but found that his mother had left behind the passport of his younger son, and so A1 left his younger son in the care of his mother and sister, and departed India with A2 and A3 for Hong Kong where they subsequently overstayed and raised their non-refoulement claim for protection, for which they jointly completed a Non-refoulement Claim Form (“NCF”) on 1 December 2016 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 January 2017 the Director of Immigration (“Director”) rejected the Applicants’ claim 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”).

6.In his decision the Director took into account of all the relevant circumstances of the Applicants’ claim and found no substantial grounds for believing that there will be any real risk of them being harmed or killed by A1’s uncle upon their return to India due to the absence of or low intensity and frequency of past ill-treatment from A1’s uncle, that it was a private family dispute over land between them without any official involvement that state or police protection would be available to the Applicants 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 A1 as an able-bodied adult with working experience to move with his family to other part of India away from his home district in large cities such as New Delhi where it would be difficult if not impossible for his uncle to locate them.

7.The Applicants then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which they attended an oral hearing on 1 March 2018 before the Board during which both A1 and A2 gave evidence and answered questions put to them by the Adjudicator for the Board. On 8 May 2018 their appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board accepted A1’s claim that there may have been some land dispute with his uncle in their home village but doubted that any threats from his uncle had continued after the farmland had been sold, and found that there is no genuine risk for their safety upon their return to India given the fact that A1 and A2 had left their younger son behind in their home village and without making further arrangement for him to depart India for Hong Kong when there have been no threats made against him since their departure that it concluded that their claim for non-refoulement protection failed on all applicable grounds.

9.On 24 September 2018 the Applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in their Form, and in his supporting affirmation of the same date A1 just stated that they are not satisfied with the decision as their lives would still be in danger and that they should be allowed to remain in Hong Kong until their problem in their home country has been resolved but without putting forth any proper ground for their intended challenge, nor did they request any oral hearing for their application.

10.By then the Applicants were also out of time with their 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.

11.As the last day of the three-month period for them to file their Form 86 fell on 8 August 2018, the Applicants were therefore more than 6 weeks late with their application, and in considering whether to extend time, the court shall have regard for (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: see AW v Director of Immigration [2016] 2 HKC 393.

12.In the Applicants’ case, a delay of more than 6 weeks must be considered as serious and substantial, for which they did not provide any explanation, and as the record show that the decision was sent on the same day to their last reported address without being returned through undelivered post, I do not see any good reason for their serious delay.

13.As for the merits, if any, of their intended application, as noted above the Applicants have not put forth any proper ground for their intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis or merits in their intended application.

14.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.

15.In the Applicants’ case, the Board rejected their claim essentially on its finding that there is not any genuine belief on their part for their safety or of any real risk of harm that they may face on their return to their home country for the thorough and detailed analysis and reasoning set out in paragraphs 37 – 46 of its decision with the benefit of hearing A1 and A2 in their oral evidence and their answers to questions raised of their claim, and in the absence of any error of law or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis to challenge the findings of the Board.

16.Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm in the Applicants’ claim is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of India, a decision also confirmed by the Board, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

17.I am of course mindful of the fact that A3 is a minor now aged 14 and not legally represented in these proceedings as required by Order 80 Rule 2 of the Rules of the High Court, and that it would be necessary to separately consider and examine whether his claim had also been properly considered and determined by the Board in a manner sufficient to meet the high standards of fairness in proceedings of this nature, and to see whether there are matters that may support potential minor-specific non-refoulement bases which had not been properly advanced to the board due to lack of legal representation in the appeal before the Board, when the proper approach of which have recently been considered by the Court of Appeal in Fabio Arlyn Timogan v Evan Roth Esq, Adjudicator of the torture Claims Appeal Board/Non-Refoulement Claims Petition Office[2020] HKCA 971 which held that claims of minor children even if based on the same set of primary facts are separate from the claims of their parents and are required to be considered as such having regard to their specific or personal circumstances, and that ill-treatment which may not reach the level of persecution in the case of an adult may do so in the case of a child.

18.In the present case, as noted above, the claim of A3 was premised fundamentally on his father’s claim of risk of harm from his father’s uncle arising from a family dispute over some farmland which has since been sold and on the clear finding of the Board of no genuine risk for their safety upon their return to their home village where A3 was born and raised and received his education up to the age of 8 before he came to Hong Kong with his parents where he also received primary education as found by the Director. As such I am unable to see any other potential non-refoulement basis which may be specific to A3 or to his personal circumstances that may not have been properly advanced to the Board in his appeal.

19.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 Applicants’ claim, nor any merits in their intended judicial review, I therefore treat the absence of legal representation for A3 in these proceedings as a mere irregularity as it would not serve any useful purpose for him to be so represented given the lack of merits in his intended judicial review.

20.For these reasons I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, and in the absence of any good reason for their serious delay, I refuse to extend time and accordingly dismiss their leave application.

Dated the 24^th day of August 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