Rajesh Kumar v. Torture Claims Appeal Board

HCAL 463/2023

[2023] HKCFI 1674

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 463 of 2023

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 23 September 2021 refused; and

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

Observations for the Applicant:

1.The Applicant is a 52-year-old national of India who entered Hong Kong illegally sometime in February 2020 and was arrested by police on 6 June 2020. 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 eldest brother for refusing to divorce his wife as she failed to bear any children for the Applicant.

2.The Applicant was born in Mohala Ranjitgarh Colony, Chamkaur Sahib, Rupnagar, Punjab, India. After leaving school he worked as a farmer, got married and continued to live with his eldest brother Paramjit Kumar (“Paramjit”) and family in his home village.

3.Despite having been married for more than 20 years, the Applicant and his wife had no children, for which Paramjit blamed the Applicant’s wife for failing to produce any heir for the Applicant, and in October 2019 started to press the Applicant to divorce his wife so that he could marry another wife to bear him children, but the Applicant refused.

4.However, as Paramjit continued to press the issue, and one day it turned into a heated argument between the 2 of them during which the Applicant was pushed by Paramjit violently that he fell and broke his ankle, and was hospitalized for several days.

5.After his discharge from the hospital, and as Paramjit continued to press him to divorce his wife, the Applicant therefore moved away to live in Ludhiana, but when Paramjit came to him one day in January 2020 and threatened to kill him if he still refused to divorce his wife. Fearing for his life, the Applicant on 29 January 2020 departed India for China, and from there he later sneaked into Hong Kong, and after 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 29 October 2020 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 25 March 2021 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”).

7.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from Paramjit upon his return to India as low due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of Paramjit to seriously harm or kill him, that in any event it was a private family dispute between the 2 of 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 the country away from his home district in large cities such as Mumbai and Bengaluru where it would be difficult if not impossible for Paramjit to locate him.

8.On 1 April 2021 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but before it was heard and decided by the Board, the Applicant by a letter dated 18 August 2021 applied to withdraw his appeal as it was safe for him to return to his home country.  

9.By a letter dated 23 September 2021 the Board allowed the Applicant to withdraw his appeal upon being satisfied that his application to withdraw his appeal/petition was freely sought, that the Applicant fully understood the consequences of his withdrawal, and that there was good reason for his proposed withdrawal as he considered it safe to return to his home country. Accordingly the Board directed that his appeal/petition be dismissed and that no further action would be taken in respect of the appeal, and also confirmed the Director’s decision.

10.However, 1 ½ years later on 23 March 2023 the Applicant filed a 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 or in his supporting affirmation of the same date in which he just stated that he refused to go back to his home country as he still has the same issue and that his life will still be in danger there, but without providing any explanation as to why it is so after having earlier confirmed to the Board that it was safe for him to return, nor did he put forward any proper ground for his intended challenge or request any oral hearing for his application.

11.By then the Applicant was clearly 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.

12.As the last day of the 3 month-period for him to file his Form 86 to challenge the Board’s decision fell on 23 December 2021, the Applicant was therefore some 15 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.

13.In the Applicant’s case, a delay of 15 months must be considered as very substantial and inordinate, for which he failed to provide any explanation in his Form or affirmation, and as the record shows that the Board’s decision was sent on the same day of 23 September 2021 to his then reported address without being returned through undelivered post, and in the absence of any explanation or elaboration as to what appears to be a change of mind over his earlier withdrawal of his appeal to the Board, I am not satisfied that the Applicant has any good or valid explanation for his serious delay.

14.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 of the Board’s decision to allow him to withdraw his appeal/petition and to dismiss it accordingly upon being satisfied that it was a deliberate and informed decision on his part, and that as his appeal was no longer extant, the Board would have become functus officio with no jurisdiction to take any step regarding his appeal, whereupon his non-refoulement claim was considered as finally determined by the Director, as notwithstanding the lack of determination by the Board on its merits, the dismissal on its valid withdrawal had nevertheless disposed of his appeal, as otherwise there would be no finality in the determination of such claims, and that much room would be created for abuse by claimants desirous of delaying their removal from Hong Kong by making last minute withdrawals and then subsequently applying for reinstatement of their appeals: see Re Das Purnima Rani [2019] HKCA 669. As such and in the circumstances, I do not find any reasonably arguable basis for his intended challenge of the Board’s decision or any merits in his intended application.

15.Or for that matter even if one were to accordingly treat the Applicant’s intended application as one instead against the Director’s decision, as in my judgment the Director was entirely correct to find that there was no evidence of any real intention of the Applicant’s eldest brother to seriously harm or kill him over something which even on the factual basis of his own case was a private family dispute between just the 2 of them without any official involvement that any risk arising therefrom would be negated by state protection and internal relocation that there is similarly no reasonably arguable basis or merits for the Applicant to apply for judicial review of the Director’s decision 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.Furthermore, as noted above that it has been established by the Director in his 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.

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 the Director’s determination of the Applicant’s claim or the Board’s consideration of his subsequent request to withdraw his appeal.

19.In the premises, as I am for the stated reasons 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 28^th day of June 2023

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