Bikramjit Singh v. Torture Claims Appeal Board

HCAL 2234/2020

[2022] HKCFI 319

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2234 of 2020

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 16 July 2020 refused; and

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

Observations for the Applicant:

1.The Applicant is a 30-year-old national of India who entered Hong Kong illegally on 27 October 2015 and was arrested by police on 28 October 2015.  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 the tenant of his father’s shop premises over some tenancy dispute between his father and the tenant.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Ajnala, Amritsar, Punjab, India where he attained the profession of electrical engineering, got married and continued to reside in his father’s 2-story house with the ground floor being let out by his father to a tenant and his family as shop premises for rental income.

3.In 2010 the tenancy of his father’s shop premises came to an end but the tenant refused to move out or to pay any further rent to his father, which led to some serious arguments between them and some court action brought by his father against the tenant, during which fights broke out between members of the two families including the Applicant on two occasions that required police intervention.

4.After the last incident when the police had warned both sides to keep the peace, and to avoid any further conflicts, the Applicant was in 2011 sent by his father to study in the UK, but when he later returned to his home village in 2013 and found his father’s dispute with his tenant had continued, the Applicant got into further confrontations with the tenant during which the tenant made death threats against him.       

5.Fearing for the Applicant’s safety, his father therefore advised him to leave the country again, and so on 22 August 2015 the Applicant departed India for Hong Kong, but he was refused entry by the Immigration Department and was repatriated to India on the following day.

6.On 17 October 2015 the Applicant again departed India but 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 7 August 2017 with legal representation from the Duty Lawyer Service (“DLS”) but failed to attend the scheduled screening interview before the Immigration Department without explanation. 

7.While being released on recognizance pending the determination of his claim, the Applicant had been arrested by police again on various occasions for the criminal offences of theft and criminal damage for which he was convicted and sentenced to various sentences totaling more than 27 months.           

8.By a Notice of Decision dated 31 August 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”).

9.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real and substantial risk of him being harmed or killed by his father’s tenant upon his return to India, that there is no evidence of any real intention of his father’s tenant to harm or kill the Applicant over the dispute between the tenant and his father, that it was a private tenancy dispute between his father and his tenant 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 father’s tenant to locate him.

10.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 25 May 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 16 July 2020 his appeal was dismissed by the Board which also confirmed the decision of the Director.

11.In its decision the Board found the Applicant’s evidence vague and without details or particulars that it doubted the credibility of his claim based essentially on a private dispute between his father and the tenant over shop premises of which the Applicant was not the legal owner and should not be affected in any way at all, that his father has all along been residing in the same place without any threats or harm from the tenant, and that in any event in the absence of 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 area away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.    

12.On 9 November 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in which he stated that the decision was not reasonable or fair as required by the Wednesbury test that the right to life is protected under Article 28 of the Basic Law and Article 2 of the Bill of Rights that in practice the right to life is mainly protected by the criminal law from extra-judicial killings that he may face if deported back to his home country.

13.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.

14.As the last day of the three-month period for him to file his Form 86 fell on 16 October 2020, the Applicant was therefore more than 3 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.

15.In the Applicant’s case, a delay of more than 3 weeks must be considered as significant or substantial, for which he explained at the hearing of the application that sometime in July 2020 he was arrested by police for some offence after he got drunk and was placed in the custody of the Correctional Service until September 2020 when he was then transferred to the Castle Peak Bay Immigration Centre (“CIC”) where he has since been detained.

16.The record shows that the Board’s decision was sent on 16 July 2020 to his then reported address without being returned through undelivered post, and in the absence of any further or documentary evidence to corroborate his bare assertions or any explanation as to how he eventually came to become aware of the decision and was able to seek proper legal assistance for the preparation and filing of his present application and supporting affirmation, I am not satisfied that the Applicant has provided any good reason for his significant delay.   

17.As for the merits of his intended application, as noted above that the Applicant has put forth some vague, random and irrelevant assertions with some key words or phrases but without any particulars or elaborations as to how they apply to his case or why or in what way would extra-judicial killings or right to life be relevant to his claim based entirely on a private tenancy dispute between his father and the tenant of his father’s shop premises in which the Applicant has no legal interest or title at all, nor was he able to clarify or advance his such bare assertions at the hearing of his application, I do not find any of these grounds reasonably arguable for his intended challenge, and as such I do not find any merits in his intended application.  

18.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.

19.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.                

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 Applicant’s claim.

21.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 26^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