Kang Sohan Singh v. Torture Claims Appeal Board

HCAL 1387/2021

[2021] HKCFI 3723

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1387 of 2021

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 the Applicant 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 15 April 2021 refused; and

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

Observations for the Applicant:

1.The Applicant is a 41-year-old national of India who arrived in Hong Kong on 29 August 2014 as a visitor with permission to remain up to 12 September 2014 when he did not depart and instead overstayed until 5 July 2016 when 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 a fellow villager over a land dispute in his home village.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Chuhar Chak Moga, Punjab, India where he owed a small piece of farmland on which he farmed, but one day in December 2013 when he tried to build some fences around his farmland, his neighbor objected and disputed his title to the land of which his neighbor claimed to the owner instead, which led to violent confrontation during which the Applicant was assaulted by his neighbor and his men, and when the police refused to help, the Applicant therefore sold his land to another villager and moved away from the village, but when he later heard that his neighbor was very upset by his sale of the farmland and had threatened to kill him, the Applicant became fearful for his life and therefore departed India on 29 August 2014 for Hong Kong where he overstayed and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 6 July 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). 

3.By a Notice of Decision dated 20 September 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”).

4.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 his neighbor upon his return to India as low due to the low intensity and frequency of past ill-treatment from him, that after the sale of the land that his neighbor would have no further reason to have any further adverse interest in him, that it was in any event a private land dispute between them 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”) 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 India away from his home district in large cities such as Delhi where it would be difficult if not impossible for his neighbor to locate him.

5.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 4 November 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 15 April 2021 his appeal was dismissed by the Board which also confirmed the decision of the Director.

6.In its decision the Board found inconsistencies and discrepancies in the Applicant’s bare assertions as to his claim the credibility of which was further undermined by his failure to raise his claim as soon as his arrival in Hong Kong until almost 2 years later, and while giving him the benefit of the doubt as to his claim of a land dispute with his neighbor in his home village, it doubted the credibility of his claimed fear of harm from his neighbor over such dispute that caused him to leave his home country for Hong Kong, and found in any event that it was a private dispute between them without 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 areas away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

7.On 5 October 2021 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1)   that the Director and the Adjudicator reached their decisions wrongly in that they were not fair or reasonable as they failed to appreciate that the right to life must be protected from extra-judicial killings that the Applicant may face if deported to his home country;

(2)   that the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in the Applicant’s case which led to an unfair outcome of rejecting his non-refoulement claim as he was tortured at the behest of the state law enforcement agencies that the state should be rendered liable to him by cause of the state and its public officials failing to provide reasonable protection to its citizens under the duty of due diligence;

(3)   that the Adjudicator acted unreasonably and was procedurally unfair by placing too much reliance on COI but failed to take the Applicant’s personal background and experience into account;

(4)   that the director had listed relevant COI which supported the aversions that the police in the Applicant’s home country would not be able to protect but failed to consider or give enough weight to that evidence and ruled otherwise;

(5)   that the Adjudicator was procedurally improper and unfair when assessing whether to accept the Applicant’s explanations and unreasonably required him to response to questions that he was not in position to answer and also failed to take account the nexus of political parties and official corruption which exist in his home country making the persecution effectively persecution by the state;

(6)   that it was a clear case of unfair attitude shown by the Director in failing to take account the argument that corruption and incompetency in the Applicant’s country is still a very serious problem as various human rights organizations have compiled reports on the matter which stated testament to the Applicant’s assertions that the Director failed to attain high standard of fairness required by Wednesbury test in the decision which should be considered unreasonable in the scope of public law; and

(7)   that the Adjudicator made a ruling to dismiss the Applicant’s appeal/petition regarding his non-refoulement claim based on findings which the Adjudicator ought to allow the appeal/petition and the decision is thus irrational.  

8.By then the Applicant was however 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.

9.As the last day of the three-month period for him to file his Form 86 fell on 15 July 2021, the Applicant was therefore more than 11 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.

10.In the Applicant’s case, a delay of more than 11 weeks must be considered as very substantial or inordinate, for which he explained at the hearing of his application that at the time he was then in prison for undertaking unauthorized employment and that it was only much later that he was informed of the decision but by then he was already out of time with his intended application.

11.The record shows that the Board’s decision was sent on the same day of 15 April 2021 to the Applicant’s last reported residential address, and while it is noted that his Form 86 was issued from Pik Uk Prison which tended to support his assertion of being in prison at the time, it was nevertheless his duty in the first place to inform the relevant authorities of any change to his address, and that any resultant delays with incoming and outgoing mails as well as accessing legal assistance while in prison cannot be accepted as good reasons or excuses for such serious delay with his application.   

12.As for the merits, if any, of his intended application, the Applicant’s proposed grounds or complaints for his intended challenge as stated above appear to me all just broad and vague assertions of his containing a few key words and phrases but without any meaningful particulars or specifics or elaborations as to how they applied to his case or how the Director or the Adjudicator had erred in their decisions, when such matters of his asserted state acquiescence or extra-judicial killings or corruptions of polices or politicians are wholly irrelevant to his claim that even on his own case that it was a private dispute over land in his home district without any official involvement or political implication at all.  As such and as none of these assertions were elaborated or presented with any meaningful or relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for his intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Director or the Board being clearly and properly identified by him, I do not find any merits in the intended application either.

13.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.

14.In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions 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.   

15.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.

16.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 10^th 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