Jagjit Singh v. Torture Claims Appeal Board

HCAL 118/2019

[2021] HKCFI 3465

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 118 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:

1.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 7 September 2018 refused; and

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

Observations for the Applicant:

1.The Applicant is a 48-year-old national of India who arrived in Hong Kong on 9 February 2007 with permission to remain as a visitor extended up to 5 March 2007 when he did not depart and instead overstayed and was arrested by police on 10 October 2007. 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 the family of the man who died in a fight with him over a drainage dispute and/or arrested by the police over the resultant criminal charge against him. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Pandori Gola, Amritsar, Punjab, India. After leaving school he worked as a farmer in his family’s farmland in his home village where there were often sewage drainage problems, and on one occasion in 2006 when he had an argument with his neighbors over the problem during which he was attacked by them with sticks, and in defense he stabbed one of the men named Karandeep with a sword before the fight was broken up by other villagers and Karandeep was taken to the local hospital.

3.Several days later the Applicant heard that Karandeep had died from his injuries and that the police were looking for him, he then fled from his home village to take shelter in a relative’s place in another village, and after his family was unable to settle the dispute with Karandeep’s family who swore to seek revenge against the Applicant by seeking him out and kill him, the Applicant therefore departed India on 9 February 2007 for Hong Kong where he subsequently overstayed, and after he was arrested by the police, he raised a torture claim with the Immigration Department, and when it was rejected, he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 11 April 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). 

4.By a Notice of Decision dated 26 July 2016 the Director of Immigration (“Director”) rejected the Applicant’s claim on the then remaining applicable grounds other than torture risk including 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”).

5.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found inconsistencies and discrepancies in his account of his dispute with his neighbors and his fight with Karandeep that it doubted the credibility of his claim which was further undermined by the fact that he was able to leave the country without any problem that it doubted that he was being pursued by the police, that in any event if indeed he was being pursued by police over Karandeep’s death that the Applicant as a fugitive of the law is not entitled to non-refoulement protection, that on the other hand that he was being pursued by Karandeep’s family for revenge that state/police protection would be available to him upon his return to India, and that reliable and objective Country of Origin Information (“COI”) show there is in place a functional legal system in which the Applicant would receive a fair trial with proper legal representation, while reasonable internal relocation alternatives would also be 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 such as Mumbai where it would be difficult if not impossible for Karandeep’s family to locate him.

6.On 16 June 2017 and 4 July 2017 the Director on his own initiative invited the Applicant to submit any 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”), and in the absence of any further submissions form the Applicant, the Director by a Notice of Further Decision dated 21 July 2017 rejected his BOR 2 claim upon finding that he had failed to establish a personal and real risk of his such absolute and non-derogable rights including right to life under BOR 2 being violated upon his return to India.

7.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 appeal which was filed on 8 August 2016, and for which he attended an oral hearing on 18 May 2018 with his lawyer from DLS before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board and with submissions made by his lawyer on his behalf. On 7 September 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

8.In its decision the Board found the Applicant’s evidence at the appeal hearing about his claims vague, disjointed and confused about his dispute with his neighbors over a drainage problem with inconsistent evidence over his alleged fight with them that it had serious doubt over the credibility of his claim which was further undermined by the lack of documentary evidence in support of his claim which he stated to be with his family in India which could have been easily produced during all his years in Hong Kong and when he was all along legally represented by DLS that it concluded that he had failed to establish that there are substantial grounds for believing that he would face a real risk of ill-treatment as claimed if refouled to India that his claim for non-refoulement protection failed on all applicable grounds.

9.On 11 January 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 or his supporting affirmation of the same date in which he just stated that he is not satisfied with the decision but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application.

10.By then the Applicant was also out of time with his application, as Order 53 Rule 4(1) of the Rules of the High Court, Cap 4A 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 ground 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 the Applicant to file his Form 86 fell on 7 December 2018, and hence he was more than 4 weeks 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.  

12.In the Applicant’s case, a delay of more than 4 weeks must be considered as substantial, for which he did not provide any explanation in his Form or affirmation, and as the record shows that the decision was on the same day sent to his last reported address without being returned through undelivered post, I do not see any good reason for his delay.

13.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 the Board or in its decision being clearly and properly identified by the Applicant, I do not find any merits in his intended application either.

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 Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 69 – 84 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim as well as submissions from his lawyer, and in the absence of any error of law 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 to challenge the finding of the Board.    

16.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.

17.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 the delay, I refuse to extend time and accordingly dismiss his leave application.

Dated the 19^th day of November 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