Brar Sukhwinder Singh v. Torture Claims Appeal Board

HCAL 1493/2020

[2022] HKCFI 2116

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1493 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:

1.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 29 October 2018 refused; and

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

Observations for the Applicant:

1.The Applicant is a 29-year-old national of India who arrived in Hong Kong on 20 April 2016 as a visitor with permission to remain up to 4 May 2016 when he did not depart and instead overstayed, and on 10 May 2016 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his father’s creditor over his father’s outstanding debts. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Smalsar, Moga District, Punjab, India. After leaving school he assisted his father in farming in his home village.

3.In 2011 his father borrowed a loan form the village head KS repayable within 2 years and with monthly interest payments to KS.

4.However, by July 2012 his father started to default with his loan repayment, and one day in August 2012 when KS and his followers came to the Applicant’s home to demand his father to transfer his land to KS as repayment of his loan, and when his father refused, they got into a fight during which KS shot his father in the chest with his gun that his father later died from his injuries.

5.As KS was the village head, the local police refused to do anything about the murder, and later in December 2012 when KS came to the Applicant to demand that he repay his father’s debts, and when he refused, KS and his followers attacked him with wooden sticks but the Applicant managed to escape and fled from the scene to take shelter in a friend’s place in Faridkot and later to his aunt’s place in Jalandhar City where he stayed for 2 years without incidents.    

6.One day in March 2015 when the Applicant sneaked back to his home village to visit his mother, he was spotted by KS and his men, and when he tried to flee, KS pulled out a gun and fired several shots at him but missed, and the Applicant managed to escape unharmed, but as he felt it was not safe to remain in India, he therefore departed India on 20 April 2016 for Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 17 January 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 10 July 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”).

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 the perceived risk of harm from his father’s creditor KS and followers is real and foreseeable upon his return to India due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill the Applicant other than to put pressure on him to repay his father’s debts, that in any event it was a private monetary dispute between his father and his creditor without 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 young man 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 creditor to locate him.

9.On 14 July 2017 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 before the Board on 28 August 2018 without any explanation, and in the absence of any request from him for a further hearing, the Board proceeded to deal with his appeal in his absence and on papers. On 29 October 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board had doubt over the Applicant’s claim of fear of harm from his father’s creditor over his father’s outstanding debts that caused him to flee his home country for Hong Kong in the absence of any oral evidence from him to clarify and explain various issues and questions over his claim which the Board had intended to raise with him during the scheduled oral hearing but which he failed to attend without explanation, and found in any event on the basis of the material and information available before the Board that his problem with KS was a private monetary dispute between them 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 part of the country away from his home district without any risk of being located by his father’s creditor that his claim for non-refoulement protection failed on all applicable grounds.    

11.On 15 July 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in which he complained that the Board reached its decision wrongly in assessing his non-refoulement claim that the decision was not fair or reasonable as required by the Wednesbury test that his right to life must be protected by the criminal law from extra-judicial killings that he may face if deported back to his home country without providing any details or particulars or elaboration as to why it was so or how would they apply to his claim.

12.By then the Applicant was also seriously 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.

13.As the last day of the three-month period for him to file his Form 86 fell on 29 January 2019, the Applicant was therefore almost 1 ½ years 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 almost 1 ½ years must be considered as extremely 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 the Applicant’s last reported address without being returned through undelivered post, I fail to see any good reason for his such serious delay.

15.As for the merits, if any, of his intended application, as noted above the Applicant has also failed to put forward any proper ground for his intended challenge other than some vague and bare assertions without any details or particulars or elaboration as to how they apply to his claim which was on the factual basis of his own case at the highest a private monetary dispute between him and his father’s creditor without any official involvement that any claimed risk of facing extra-judicial killings or engaging the BOR 2 risk upon his return to his home country is simply untenable and without any merits in his intended application.

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 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.                

18.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.Furthermore, the Applicant recently on 30 May 2022 filed an affirmation requesting to withdraw his application as he wants to return to his home country.

20.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 in view of his latest confirmation of his wish to return to his home country, I refuse to extend time and accordingly dismiss his leave application.

Dated the 13^th day of July 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