Gurwinder Singh v. Torture Claims Appeal Board

HCAL 789/2020

[2022] HKCFI 1974

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 789 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 (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 38-year-old national of India who overstayed in Hong Kong since 5 December 2014 and subsequently surrendered to the Immigration Department on 3 February 2015 when he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by the local supporters of the political party Shiromani Akali Dal Party (“SAD”) because he supported their rival Aam Admi Party (“AAP”). He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Dhanouri, District Patiala, Punjab, India. After leaving school he assisted in his family’s farming in his home village, and supported AAP as an ordinary supporter without any official post in the party and regularly attended their local meetings and rallies, during which he and his fellow AAP supporters would frequently run into violent conflicts with the SAD supporters, and after several occasions when he was attacked by some of those SAD supporters with sticks and clubs that he suffered injuries which required medical treatments.

3.After SAD won the general election in 2014 and became the ruling party, the Applicant became fearful that there would be more open attacks on AAP supporters in his home village that he fled to Delhi to take shelter in a friend’s place, and on 17 September 2014 he departed India for China, and from there he later travelled to Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 17 September 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

4.By a Notice of Decision dated 9 October 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”).

5.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 he will be subjected to a foreseeable and genuine risk of being harmed by those local SAD supporters upon his return to India due to the low intensity and frequency of past ill-treatment from them, that there is no evidence or reason for him to be specifically targeted for harm given that he was just an ordinary AAP supporter without any official post in the party, 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 upon his return to India, 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 Mumbai where it would be difficult if not impossible for those local SAD supporters to locate him.

6.On 18 October 2018 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 9 December 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 3 January 2020 his appeal was dismissed by the Board which also confirmed the decision of the Director.

7.In its decision the Board found exaggerations in the Applicant’s evidence as to his claimed fear of harm from those local SAD people as there is no evidence or reasons for them to specifically target him given that he was just an ordinary AAP supporter without any official post in the party, and that in any event in the absence of any official involvement that state/police protection would be available to the Applicant if needed upon his return to India as well as reasonable internal relocation for him to move safely to other part of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.  

8.On 29 April 2020 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 repeated his claim as before that his life would be in danger in his home country without putting forth any proper ground for his intended challenge.

9.By then the Applicant was also 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.

10.As the last day of the three-month period for him to file his Form 86 fell on 3 April 2020, the Applicant was therefore some 26 days 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.

11.In the Applicant’s case, a delay of 26 days must be considered as substantial or 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 am unable to see any good reason for his serious delay.

12.As for the merits, if any, of his intended application, as noted above the Applicant has failed to put forth any 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.

13.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.

14.In the Applicant’s case, the fact is that it has also been correctly established by both the Director and the Board in their respective decision 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.                

15.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.

16.Furthermore, the Applicant recently requested in writing to withdraw his application as he wants to return to his home country.

17.In the premises, 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 the absence of any good reason for his serious delay, and given his latest confirmation of his wish to return to his home country, I accordingly dismiss his leave application.

Dated the 28^th day of June 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