Manjit Singh v. Torture Claims Appeal Board

HCAL 1198/2021

[2022] HKCFI 1229

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1198 of 2021

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 (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 11 March 2021 refused; and

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

Observations for the Applicant:

1.The Applicant is a 47-year-old national of India who entered Hong Kong illegally on 6 September 2015 and was arrested by police on the same day. 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 cousins over their land dispute in their home village. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Koopur, Jalandhar City, Punjab, India. After leaving school he worked as a farmer and other jobs, got married and raised his family in his home village.

3.In 1986 his grandfather passed away and left all his farmland in the home village to the Applicant’s father who then allowed the Applicant’s uncles to take care of the land while the Applicant’s father was working overseas.

4.In about 1993 the Applicant as his father’s eldest son approached his cousins who were then having control and possession of the farmland for the return of the land to the Applicant’s family, but when the cousins refused, they broke into heated quarrels for the next several years during which the Applicant and his siblings had been assaulted by his cousins and his cousins’ followers with hockey sticks.

5.As a result, the Applicant became fearful for his safety and fled with his family to UK in 1996 to seek asylum, but when his application turned out unsuccessful, the Applicant returned to India in 2008.     

6.Upon returning to his home village, the Applicant again raised his dispute with his cousins over the farmland which led to more violent confrontations, and eventually in 2013 when his cousins filed an assault case against the Applicant which led to his arrest by the police, and after he was released on bail, the Applicant fled to Banaras City, and on 25 August 2015 he departed India 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 15 December 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

7.By a Notice of Decision dated 23 January 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”).

8.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 cousins upon his return to India due to the low intensity and frequency of past ill-treatment from them, that even on his own case that his land dispute with his cousins had gone on for more than 20 years without any reliable evidence of any real intention of his cousins to seriously harm the Applicant over all these years, that in any event it was a private family 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 cousins to locate him.

9.On 6 February 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but for which he failed to attend the scheduled oral hearing on 22 May 2020 before the Board without explanation, and when he later also failed to respond to the Board’s request for his explanation for his non-attendance or any request from him for any further oral hearing, the Board proceeded to deal with his appeal in his absence and on papers, and on 11 March 2021 it dismissed his appeal and confirmed the Director’s decision.

10.In its decision the Board found inconsistencies, discrepancies and implausibility in the Applicant’s claim based on the information and material previously submitted by him to the Director and available before the Board which the Applicant failed to clarify or explain due to his failure to attend the scheduled oral hearing for his appeal without explanation that it doubted the credibility of his claim of fear of harm from his cousins over their land dispute, and that in any event if his claim were true that it was a private family dispute 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 move safely to other area away from his home district without any risk of being located by his cousins that his claim for non-refoulement protection failed on all applicable grounds.   

11.On 26 August 2021 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 merely repeated his claim as before that he cannot return to his home country where his life will be in danger that he does not agree with the decision but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application.

12.By then the Applicant was also out of time with his application, as Order 53 Rule 4(1) of the Rules of 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 filed.

13.As the last day of the three-month period for him to file his Form 86 fell on 11 June 2021, the Applicant was therefore more than 2 months 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.

14.In the Applicant’s case, a delay of more than 2 months must be considered as substantial and inordinate, for which he did not provide any explanation in his Form or affirmation, and as the record shows that the decision was sent on the same day to his last reported address without being returned through undelivered post, I do not see any good reason for his serious delay.

15.As for the merits, if any, of his intended application, as noted above the Applicant has also failed to put forth any proper ground for his intended challenge, 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 merits in his intended application either.

16.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.

17.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 if true 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.     

18.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.

19.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 29^th day of April 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