Talwinder Singh v. Torture Claims Appeal Board

HCAL 929/2020

[2021] HKCFI 2957

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 929 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 35-year-old national of India who arrived in Hong Kong on 14 August 2008 but when he was refused entry by the Immigration Department, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by the local supporters of the political party Shiromani Akali Dal Party (“SAD”) as he supported their rival Indian Congress Party (“INC”).  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Roomi, District Ludhiana, Punjab, India.  After leaving school he assisted in his father’s farming in his home village, and followed his family’s tradition to support INC by regularly attended their local meetings and rallies, during which he and his fellow INC supporters frequently came into violent conflicts with SAD supporters in his home village.

3.After two incidents in 2007 when he and his father were attacked by SAD supporters, the Applicant fled home to take shelter with his relatives in different places, and eventually on 14 August 2008 he departed India for Hong Kong, and when he was refused entry he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 19 July 2016 with legal representation from the Duty Lawyer Service (“DLS”) but failed to attend any screening interview before the Immigration Department due to alleged medical reasons.  

4.Whilst being released on recognizance pending determination of his claim, the Applicant had been arrested by police for various offences including fighting in public, theft and trafficking in dangerous drugs for which he was fined or sentenced to prison.

5.By a Notice of Decision dated 2 September 2016 the Director of Immigration (“The Director”) rejected the Applicant’s claim on all then 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 those local SAD supporters upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence or reason for them to specifically target him for harm and that it is doubtful that they would still have any interest in him after all these years since his departure of India, that in the absence of 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 away from his home district in large cities such as Delhi where it would be difficult if not impossible for him to be located.

7.By a Notice of Further Decision dated 2 August 2017 the Director again rejected the Applicant’s claim in the absence of any response from him to an earlier invitation 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”).

8.By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“Board”) against the earlier decision of the Director, the notice of which was filed on 12 September 2016, and for which he attended an oral hearing on 7 February 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board.  On 21 March 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.In its decision the Board accepted the Applicant’s claim of conflicts with the local SAD supporters in his home village but found no evidence that those SAD people had specifically targeted him for harm or would still have any adverse interest in him after all these years, and that in any event in the absence of any official involvement that state/police protection would be available to the Applicant upon his return to India as well as reasonable internal relocation for him to safely move to other area away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.   

10.On 18 May 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, and in his supporting affirmation of the same date he merely stated that he needed time to produce proof that his life is in danger in his home country but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application.

11.By then the Applicant was also 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 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 21 June 2018, the Applicant was therefore almost 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 almost 2 years must be considered as extremely substantial and excessive, for which he did not provide any explanation in 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 do not see any good reason for his serious delay.

14.As for the merits, if any, of his 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 eth 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.

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.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 18 August 2021 wrote to the court requesting to withdraw his application as the political situation in India has changed after all these years and as he is no longer involved in politics, it is safe for him to return to his home country, and as his parents are getting old that he is needed to take care of them and to take over his father’s farming that he would like to leave Hong Kong to return to India as soon as possible so as to start a new life and to form his own family.

19.In the premises, as I am for the reasons given not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, nor is there any good reason for his serious delay, and in view of his latest confirmation that it would be safe for him to return to his home country, I therefore accede to his request and accordingly dismiss his leave application.

Dated the 30^th day of September 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