Harpal Singh v. Torture Claims Appeal Board

HCAL 3285/2019

[2022] HKCFI 85

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3285 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:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 39-year-old national of India who arrived in Hong Kong on 29 January 2014, and when he was refused entry by the Immigration department, he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by certain local members of the political party Shiromani Akali Dal (“SAD”) due to his father’s refusal to join their party.  He was subsequently released on recognizance pending the determination of his claim. 

2.The Applicant was born and raised in Village Aliwal, Amritsar, India where his father was a local police officer.  In 1989 after his father refused to join SAD, some of its members came to the Applicant’s home to make threats against his family, and so in 1991 his parents moved the family out of their home village to Ramdas where they lived for more than 10 years without incidents. 

3.However, one day in 2004 some SAD people came to their home looking for the Applicant’s father, and when they were unable to find him, they then left without making any threats against the family, but the Applicant’s parents were concerned about further harassments from them, and therefore moved the family to Ludhiana.

4.In early 2005 the Applicant’s father moved the family back to their home village in Amritsar due to the Applicant’s ailing grandfather, but one day in April 2005 the Applicant’s younger brother died from poison, of which the Applicant’s father suspected was caused by the SAD people against him, and so shortly thereafter the Applicant’s mother brought the family back to Ramdas while his father went to work in Ludhiana.

5.After his grandfather passed away in 2010, the Applicant’s mother moved with the Applicant and his family back to their home village to be with his grandmother, but one day in August 2012 the Applicant was robbed by some unknown men on the street, of which he suspected were SAD people to take revenge against his father for refusing to join their party, and so after his grandmother had passed in late 2012, the Applicant felt it was no longer safe to remain in India, and so in April 2013 he left the country to work in Thailand, and from there he later in January 2014 travelled to Hong Kong, and when he was refused entry he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 16 April 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).              

6.By a Notice of Decision dated 26 September 2014 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), 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”).

7.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the claimed risk of harm from those SAD people upon his return to India to be unlikely to materialize due to the absence of or low intensity and frequency of past ill-treatment from them, that the claimed risk arose from the threats made against his father some 25 years ago when the Applicant was just a small boy is largely based on hearsay without any evidence of him being targeted that it is not accepted that there would be any adverse interest in him after all these years, that all other threats said to have come from the SAD people were all based on suspicions and speculations unsupported by evidence to be credible, that in any event in the absence of 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 perceived enemies to locate him.

8.On 6 October 2014 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 15 January 2015 before the Board during which he gave oral evidence and answered questions raised of his claim by the Adjudicator of the Board.  On 28 August 2015 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board found even on the Applicant’s own case that it was to a large extent built on facts not within his own knowledge with the majority related to him by his father or other members of the family unsupported by evidence or simply based on suspicions and speculations, that the cause of the alleged threats from SAD people arose from a dispute with his father that occurred many years ago without any evidence that the Applicant had ever been targeted, and on his own admission that his father still lives in India without any harm that there is simply no basis to suggest that the Applicant himself will face any real risk of harm of any form from anyone upon his return to India that his claim for non-refouleemnt protection just failed on all applicable grounds.     

10.Meanwhile on 28 December 2016 the Director on his own initiative in writing invited the Applicant to submit 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 response from him, the Director by a Notice of Further Decision dated 13 January 2017 also rejected the Applicant’s BOR 2 claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR including right to life under BOR 2 being violated upon his return to India.

11.On 27 July 2018 the Applicant again lodged an appeal to the Board against this further decision of the Director, but as his Notice of Appeal was on this occasion deemed to have been filed outside the 14-day period as required under Section 37ZS(1) of the Immigration Ordinance, the Board in pursuance of Section 37ZT(2) proceeded to decide as a preliminary decision without a hearing whether to allow the late filing of his Notice of Appeal. 

12.By a written decision dated 1 November 2019 the Board refused to allow the late filing of the Applicant’s Notice of Appeal upon finding that there had been a very serious delay of some 18 months, that his explanation of receiving the decision late was just a bare assertion unsupported by any further details or documentary evidence, and that there was nothing in the factual basis of his case as set out in the Director’s further decision or other relevant matters of fact within the Board’s knowledge in its first decision which might be considered as special circumstances that would otherwise make it unjust not to allow the late filing of his Notice of Appeal.     

13.On 4 November 2019 the Applicant filed his Form 86 for leave to apply for judicial review of this second decision of 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 is not satisfied with the decision as he still has problem in his home country that he cannot go home but without putting forth any proper ground for his intended challenge.

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 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 refused to allow the late filing of his second appeal for the correct analysis and reasoning set out in its decision after having found in its earlier decision, again correctly in my view and without any challenge from the Applicant, that his claim was essentially just bare assertion based on speculations and suspicions and unsupported by any evidence that even if true would not engage the BOR 2 ground in the first place, and that in the absence of any additional evidence or information relevant to his BOR 2 claim from the Applicant that it would not have assisted him or advanced his case any further even if he had not been late with his Notice of Appeal or that if its late filing had been allowed by the Board.  As such 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, there is simply no arguable basis for any challenge of the finding of the Board.   

16.The fact is that it has also been established by the Director in his earlier decision that the risk of harm in the Applicant’s claim 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.                 

17.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 or in the Board’s second decision in refusing to allow the seriously late filing of his appeal on BOR 2 claim which as noted above simply did not engage that ground based on the Applicant’s own case. 

18.Furthermore, the Applicant recently on 13 December 2021 filed an affirmation requesting to withdraw his application as his problem in his home country has been resolved. 

19.In the premises, and as I am for the reasons given not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation that his problem in his home country has been resolved, I therefore refuse to grant leave and accordingly dismiss his application.

Dated the 6^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