Jagroop Singh v. Torture Claims Appeal Board and Another

HCAL 160/2019

[2021] HKCFI 3630

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 160 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 August 2018 refused; and

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

Observations for the Applicant:

1.The Applicant is a 27-year-old national of India who entered Hong Kong illegally on 18 April 2015 and was arrested by police on the same day.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his family’s creditor over outstanding debts and/or by the uncle of a friend for being involved in their 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 Kambo, District Tarn Taran, Punjab, India, and after leaving school he assisted in his family’s farming in his home village.

3.In 2010 his family borrowed a loan from a local loan shark to pay for his father’s medical expenses for an operation in the hospital, with the loan repayable within 18 months and with monthly interest payments, but after 4 or 5 payments his family was unable to make any further payments, and as a result the loan shark sent men to threaten his family and beat up his brother, and so in 2013 the Applicant and his family fled from their home village to take shelter in a relative’s place in Chola Sahib City, Amritsar, but soon the Applicant was spotted by the loan shark and his men in the street but he managed to make his escape from them.

4.Fearing for his safety, the Applicant therefore departed India for Malaysia where he found a job working as a security guard until March 2014 when he returned to India where he had to move from house to house from amongst his relatives in Amritsar to avoid being located by the loan shark.

5.One day in March 2015 he accompanied his friend to meet with his friend’s uncle over their dispute about some of their family land when a heated quarrel broke out that the Applicant and his friend were attacked by his friend’s uncle and his men but managed to make their escape without serious injury, but thereafter his friend’s uncle had sent death threats to the Applicant and his friend that the Applicant became fearful for his life, and so on 11 April 2015 he again departed India for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 30 September 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

6.By a Notice of Decision dated 23 October 2017 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 of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from the loan shark or his friend’s uncle 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 of any real intention of them to seriously harm him given that his family were still living safely in India while his friend’s dispute with his uncle was their own private matter with nothing to do with the Applicant, that in any event in the absence of any official involvement in either matter 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 young adult with working experience to move to other part of India away from his home district in large cities such as Delhi where it would be difficult if not impossible for his perceived enemies to locate him.

8.On 19 November 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, of which the Board found to have been late by almost 2 weeks but nevertheless allowed his late filing, and so the Applicant attended an oral hearing for his appeal on 11 April 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 7 August 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found the Applicant’s evidence as to his claimed fear of harm from his alleged risks wholly inconsistent conflicting and contradictory that it had significant doubts over the Applicant’s overall credibility, that it considered his such claim lacks credibility, that his alleged problem with his friend’s uncle if true was a one-off incident in a different part of the country to his home area that there is nothing to suggest that he would be at risk of harm in his own home district from his friend’s uncle, that there is no evidence that he is of any interest to the government or authorities of India, and that it regarded that his alleged risk of harm if refouled to India would amount to torture, persecution, arbitrary deprivation of life and/or CIDTP to be far-fetched and fanciful that the Applicant’s claim for non-refoulement protection failed on all applicable grounds.    

10.On 17 January 2019 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he just stated that he does not agree with the decisions as he cannot go back to his home country where his life will still be in danger but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application.

11.By then he 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 day 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 the Applicant to file his Form 86 fell on 7 November 2018, and hence he was some 10 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] HKC 393.

13.In the Applicant’s case, a delay of 10 weeks must be considered as very substantial or inordinate, for which he did not provide any explanation in his Form or supporting affirmation, and as the record shows that the decision was sent on the same day to his then last reported address without being returned through undelivered post, I do not see any good reason for his such serious delay.

14.As for the merits, if any, of his intended application, as noted above the Applicant has not put forth any proper ground for his intended challenge either in his Form or supporting affirmation, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any 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 Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 25 – 49 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, 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.  

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

18.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.

19.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 2^nd day of December 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