Kalsi Karamjeet Singh v. Torture Claims Appeal Board

HCAL 3550/2019

[2022] HKCFI 31

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3550 of 2019

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 13 September 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 arrived in Hong Kong on 30 March 2013 as a visitor with permission to remain up to 13 April 2013 when he did not depart and instead overstayed, and was arrested by police on 8 July 2013.  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 neighbor over some personal disputes with the Applicant’s father in his home district.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Faridkot, Punjab, India where his neighbor Khullar used to have some land dispute with the Applicant’s uncle and was therefore on bad terms with the Applicant’s family.

3.In early 2013 the Applicant had a fight with Khullar’s son over which Khullar was furious, and after a quarrel between Khullar and the Applicant’s father, the Applicant left his home district to Jalandhar City to avoid further feud with Khullar and his son, and on 21 March 2013 he departed India for Thailand, and from there he travelled to Hong Kong where he subsequently overstayed, and after 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 18 May 2016 with legal representation from the Duty Lawyer Service (“DLS”) but failed to attend any scheduled screening interviews before an immigration officer for unknown reason.

4.Whilst being released on recognizance pending determination of his claim, the Applicant had been arrested by police on 5 separate occasions for various criminal offences including possession of dangerous drugs, theft, and assault occasioning actual bodily harm, and for which he was convicted and sentenced to various prison terms totaling more than 33 months.                

5.By a Notice of Decision dated 25 November 2016 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”).

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 Khullar and his son upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that his problems with them were private personal disputes between the two families 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 young adult to move to other part of India away from his home district in large cities such as Jalandhar where he had stayed before without incidents and where it would be difficult if not impossible for his neighbours to locate him.

7.On 21 July 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but as his Notice of Appeal was deemed to have been filed outside the 14-day period required under Section 37ZS(1) of the Immigration Ordinance, and in pursuance of Section 37ZT(2) the Board proceeded to decide as a preliminary decision without a hearing whether to allow the late filing of his Notice of Appeal.

8.By a written decision dated 13 September 2018, the Board refused to allow the late filing of the Applicant’s Notice of Appeal upon finding that the delay had been some 7 ½ months, that he had no good reason for such serious delay, and that there were no other matters known to the Board or revealed by the factual basis of his claim which might amount to special circumstances that would otherwise make it unjust not to allow the late filing of his appeal.

9.On 29 November 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, and in his supporting affirmation of the same date he just stated that he does not agree with the decision as he cannot return to his home country where his life is still in danger but without putting forth any proper ground for his intended challenge.

10.By then the Applicant was also seriously 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 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 him to file his Form 86 fell on 13 December 2018, the Applicant was therefore more than 11 months late with his application, for which he failed to provide any explanation for his inordinate delay, nor as noted above has he put forth any proper ground for his intended challenge. As such 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 reasonably arguable basis for or any merits in his intended application.

12.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.

13.In the Applicant’s case, the fact is that it has been correctly established by the Director in his decision that the risk of harm in the Applicant’s claim is a localized one arising from a private land dispute between neighbours without any official involvement that state/police protection would be available to the Applicant upon his return to India, and that it is not unreasonable or unsafe for him to relocate to other area without any risk of being located that there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                 

14.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.

15.Furthermore, the Applicant recently on 1 December 2021 wrote to the court requesting to withdraw his application as he wants to return to his home country.

16.In the premises, and as noted above in the absence of any good reason from the Applicant for his serious delay with his application or any reasonably arguable ground for his intended challenge, and given his latest confirmation of his desire to return to his home country, I refuse to extend time and accordingly dismiss his leave application.

Dated the 4^th day of January 2022.

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