Gurdeep Kaur and Others v. Torture Claims Appeal Board

HCAL 1901/2019

[2022] HKCFI 54

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1901 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 the 1st Applicant and the 2nd Applicant in open court for her own and on behalf of the 3rd Applicant;

Order by Deputy High Court Judge Bruno Chan:

1.  extension of time for the 2^nd and 3^rd Applicants’ application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 1 March 2019 refused; and

2.  the 2^nd and 3^rd Applicants’ application for leave to apply for Judicial Review dismissed.

Observations for the Applicants:

1.The 1^st Applicant (“A1”) is a 57-year-old national of India who last arrived in Hong Kong on 15 January 2010 together with her daughter, the 2^nd Applicant (“A2”) now aged 31, and her 2 sons then minors but have since also become adults, with permission to remain as visitors up to 29 January 2010 when they did not depart and instead overstayed in Hong Kong, and on 3 February 2010 they surrendered to the Immigration Department and raised a torture claim on the basis that if they returned to India they would be harmed or killed by the terrorist groups Babbar Khalsa (“BK”) and/or Khalistan Liberation Force (“KLF”) which were then both part of the outlawed Khalistan military movement for an independent Sikh homeland Khalistan and which had murdered A1’s policeman father as part of their target against the Indian government, and for which A1 feared that she and her children would also be harmed or killed by those terrorist groups, and after their torture claim was rejected, they then sought non-refoulement protection on the same basis, for which they were subsequently released on recognizance pending the determination of their claim, during which A2 married her Indian husband in Hong Kong and gave birth to a daughter, the 3^rd Applicant (“A3”) on 20 September 2015 and for whom A2 also raised a non-refoulement claim on the same basis and to be jointly assessed together with the other applicants.   

2.A1 was born and raised in Village Delloana, District Mansa, Punjab, India where her father worked as a police inspector but was killed in 1987 together with several fellow policemen when they were ambushed by those terrorist groups of the Khalistan movement which had also killed some other members of her family who worked in the military and security sections of the government, and as a result her family were given police protection after they had continued to receive threats from those terrorist groups. 

3.In about 1988 A1 married her first husband and subsequently gave birth to A2 before divorcing him, and in 1993 she married her second husband and gave birth to her 2 sons, but in 1998 and 2006 she came to Hong Kong as a visitor under another identity during which she never raised any claim for non-refoulement protection.   

4.A1 eventually separated with her second husband, and on 14 January 2010 she departed India and travelled again to Hong Kong with her 3 children where they overstayed and subsequently surrendered to the Immigration Department and raised their torture claim, and after their torture claim was rejected, they then sought non-refoulement protection for which they completed a Supplementary Claim Form (“SCF”) on 20 April 2016, and upon given birth to A3 in Hong Kong, A2 also raised a non-refoulement claim for her on the same basis and completed a Non-refoulement Claim Form (“NCF”) for A3 on 5 July 2016, and with the entire family also attended joint screening interviews before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

5.By a Notice of Decision dated 28 October 2016 the Director of Immigration (“Director”) rejected their claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”) for A3 only, and for all of them the remaining grounds including risk of their 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 claims of A1 and her children and granddaughter and found no substantial grounds for believing that their fear of being harmed or killed by those terrorist groups upon their return to India was likely to materialize due to the absence of any past ill-treatment from them, that there is no evidence that they have ever been targeted by those groups since A1’s father was killed 30 years ago as a policeman, that thereafter there had never been any threats made against any of them for more than 20 years before they left the country in 2010, that in the absence of any official involvement that state or police protection would be available to them if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that after the terrorist/secessionist movement for Khalistan was comprehensively defeated and put down by the Indian government in 1993 that there have been relative peace in the affected state of Punjab since 1995 that those groups no longer post any risk to anyone in that area, and that if necessary reasonable internal relocation alternatives would also be available to A1 and her family upon their return to 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 A1 and her children as able-bodied adults to move with her granddaughter to other part of India away from their home district or area where those terrorists groups used to operate many years ago to other large cities such as Delhi or Mumbai where it would be difficult if not impossible for them to be located.

7.On 8 November 2016 A1 together with her children except her second son who has since married a Hong Kong resident and has abandoned his claim, and her granddaughter lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which they attended an oral hearing on 15 February 2019 before the Board during which A1 and her adult children gave evidence and answered questions raised of their claim by the Adjudicator for the Board. On 1 March 2019 their appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board accepted A1’s evidence that her father as a police officer in Punjab was a victim of one of those Sikh terrorist groups operating there in 1987 and that her family had then also received threats for some time and as a result had gone into hiding, but found no evidence even on A1’s own case that she had ever been harmed, while those threats made against her family have ceased many years ago and that activities or influences of those terrorist groups have since substantially declined over the years since the 1990s that it is not satisfied that there would still be any adverse interest from any of those terrorist groups in A1 or her family or that she and her family would suffer any harm from anyone or that there is any real risk or real chance that they would suffer any harm under any of the proscribed risks upon their return to India that their claim for non-refoulement protection failed on all the applicable grounds.    

9.On 8 July 2019 A1 filed a Form 86 for herself, her daughter and granddaughter but without her elder son, who is as noted already an adult, for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in their Form, and in their joint supporting affirmation of the same date A1 and A2 merely stated that they reject the decision as it disregarded their family’s dangerous situation but without putting forth any details or particulars or elaboration as to how it did so, nor did they put forth any other proper ground for their intended challenge.

10.Prior to the hearing of their application, A1 on 1 April 2021 filed an affirmation to request to withdraw the application as she would like to return to her home country but without providing any further details or whether her request to withdraw was for herself only or for the other two applicants as well, and so the Court caused a letter to A1 for her to clarify her request but no response had been received from her, and a hearing was therefore scheduled for the Applicants’ application, which they all did when A1 confirmed her request to withdraw for herself only as she no longer has any problem returning to her home country, while A2 maintained her wish to proceed with the application for herself and A3 but did not put forth any further ground for their intended challenge, nor did she wish to elaborate the complaint originally stated in the supporting affirmation as noted above.

11.The Court therefore allowed A1 to withdraw her application, and proceeded to deal with the application of A2 and A3 which was however out of time, 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.

12.As the last day of the three-month period for them to file their Form 86 fell on 1 June 2019, A2 and A3 were therefore more than 5 weeks late with their 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 present case, a delay of more than 5 weeks must be considered as substantial and inordinate, for which A2 did not provide any explanation other than stating that it was her mother, A1, who was responsible for the filing of the application, but as the record shows that the Board’s decision was sent on the same day to their last reported address without being returned through undelivered post, I am not satisfied that there is any good reason for their substantial delay.

14.As for the merits, if any, of their intended application, as noted above the Applicants have failed to put forth any proper ground for their intended challenge, and as such and in the absence of any error of law or irrationality or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis for their intended challenge.   

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 Applicants’ case, the Board rejected their claim essentially on its clear findings of no evidence of any past or future risk of harm to them upon their return to India for the thorough and detailed analysis and reasoning set out in paragraphs 35 – 64 of its decision including the relevant COI and with the benefit of hearing their oral evidence and answers to questions raised of their claim, and in the absence of any error of law or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis to challenge the findings of the Board.  

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

18.I am of course mindful of the fact that A3 is a minor now just 6 years old and was not legally represented in these proceedings as required by Order 80 Rule 2 of the Rules of the High Court, and that it would be necessary to separately consider and examine whether her claim had also been properly considered and determined by the Board in a manner sufficient to meet the high standards of fairness in proceedings of this nature, and to see whether there were matters that may support potential minor-specific non-refoulement bases which had not been properly advanced to the Board due to lack of legal representation in the appeal before the Board, when the proper approach of which was considered by the Court of Appeal in the case of Fabio Arlyn Timogan [2020] HKCA 971 in that claims of minor children even if based on the same set of primary facts are separate from the claims of their parents and are required to be considered as such having regard to their specific or personal circumstances, and that ill-treatment which may not reach the level of persecution in the case of an adult may do so in the case of a child.

19.In the present case, as noted above the claim of A3 was premised fundamentally on the claim of her grandmother, i.e. A1, of risk of harm from some terrorist groups arose from an act which occurred some 30 years ago, and that whose actions and activities have since been put down some 20 years before A3 was even born when no such risk has ever been posted or will be posted to her upon her return with her mother to India, and where her grandmother also originally raised the claim also no longer fears any such risk upon her withdrawal of her own application. As such and as I am unable to find any matter which may support any potential non-refoulement basis that may be specific to A3 or her personal circumstances which could have been advanced to the Board in her appeal against the Director’s decision, I do not find any reasonably arguable basis which may be specific to A3’s circumstances as a minor for her intended challenge either.     

20.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 claim of A2 or A3.

21.For these reasons I am not satisfied that there is any prospect of success in the intended application of A2 or A3 for judicial review, and in the absence of any good reason for their substantial delay, I refuse to extend time and accordingly dismiss their leave application.

Dated the 5^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