Gurvinder Singh and Another v. Torture Claims Appeal Board

HCAL 1335/2019 and
HCAL 1336/2019

(Consolidated)

[2023] HKCFI 1811

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNO 1335 OF 2019

AND

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1336 OF 2019

(Consolidated pursuant to the Order of
Deputy High Court Judge Bruno Chan dated 3 November 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 the 1st Applicant in HCAL 1335/2019 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 27 September 2018 be refused; and

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

Observations for the Applicant:

1.The Applicant (the 1^st Applicant in HCAL 1335/2019) is a 38-year-old national of India who arrived in Hong Kong on 24 August 2013 as a visitor with permission to remain as such up to 11 September 2013 when he did not depart and instead overstayed, and was arrested by police almost 7 months later on 4 April 2014. 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 a local gangster family for refusing to pay extortion money and/or by the police over some false charges filed by those gangsters against him.

2.Meanwhile on 18 November 2013 his wife and daughter also arrived in Hong Kong as visitors and then overstayed, and subsequently also raised a non-refoulement claim relying on the same basis of the Applicant’s claim, and which was to be assessed jointly with that of the Applicant, and that the family was subsequently all released on recognizance pending the determination of their claims.

3.The Applicant was born and raised in Village Kot Shamir, District Bathinda, Punjab, India. After leaving school he assisted in his family’s trucking business, married his wife and raised a family with a daughter in his home district.

4.In his home village there was a family of gangsters who engaged in extorting money from the local businesses, and after his family refused to comply with their demand for extortion money, one day in June 2012 the Applicant was beaten by those gangsters and had to be taken to the hospital for medical treatments.

5.On another occasion in September 2012 the Applicant was caught in the cross-fire of a gun battle between those gangsters and another group that he was hit by a stray bullet and was taken to the hospital for treatment.

6.Upon discharge from hospital, the Applicant was arrested by the police as a complaint had been filed by those gangsters accusing him of being responsible for the death of one of their family members in the shooting incident, and as a result the Applicant was detained at the local police station for interrogations during which he was tortured by the police as he refused to confess to the charge.

7.Thereafter the Applicant was brought to the court but was remanded for further detention in judicial custody, during which those gangsters put poison in his food that he got seriously ill and was again taken to the hospital for emergency treatment.

8.Fearing that those gangsters would make further attempts to kill him in the hospital, the Applicant subsequently managed to escape from the hospital back to his home village, and with financial assistance from his family, he then fled to other towns to avoid those gangsters and the police, and upon eventually arriving in Delhi, he then on 24 August 2013 departed India for Hong Kong where he overstayed, and upon his subsequent arrest by the police he then raised his non-refoulement claim for protection.              

9.Meanwhile the Applicant also arranged for his wife and daughter to come to Hong Kong to also raise their non-refoulement claim jointly with his, and for which they completed a Non-refoulement Claim Form (“NCF”) on 11 August 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

10.By a Notice of Decision dated 26 September 2017 the Director of Immigration (“Director”) rejected the claims of the Applicant and his family on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of their 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”).

11.In his decision the Director took into account of all the relevant circumstances of the claims of the Applicant and his family and assessed the level of risk of harm from those gangsters in his home village or the police upon their return to India as low due to the absence of or low intensity and frequency of past ill-treatment from them, that his problem with those local gangsters was a private monetary dispute without any official involvement that state or police protection would be available to the Applicant if resorted to, 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 with his family to other areas of the country away from his home district in large cities such as Delhi where it would be difficult if not impossible for those local gangsters to locate them, while there is no reliable evidence of any adverse interest of the police in him or that he had been pursued over any false murder charge against him given the fact that he and his family were able to leave the country without difficulty, and that if indeed there was a formal criminal charge against the Applicant by the Indian authorities, than the Applicant would be a fugitive of the law not entitled to non-refoulement protection, and for which he would be entitled to due process with proper legal representation for a fair trial under the current legal and judicial system in place in India.  

12.On 10 October 2017 the Applicant together with his family lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which they attended an oral hearing on 19 April 2018 before the Board during which the Applicant gave evidence and answered questions raised of their claim by the Adjudicator for the Board, but after the hearing was adjourned to 23 July 2018 for him to complete his evidence and for his wife to give hers, they subsequently failed to attend the second hearing without any explanation. On 27 September 2018 their appeal was dismissed by the Board which also confirmed the Director’s decision.

13.In its decision the Board found material inconsistencies, discrepancies and implausibility in the Applicant’s evidence as to the ways he became involved with the local gangsters over various incidents prior to his departure of India that it doubted his claim of fear of harm from them that caused him to leave his country to come to Hong Kong, that his credibility was further undermined by his failure to raise his claim upon his first arrival in Hong Kong until almost 7 months later and only after his arrest by the police that it is not accepted that he would face any real risk of harm from those local gangsters upon his return to India where he would be accorded with state or police protection if resorted to, and if he was indeed wanted by the police or authorities over certain criminal charges brought against him in his home country, then he would be a fugitive of law for which he would not be entitled to non-refoulement protection, and in which case according to relevant COI that upon refoulement that he would be entitled to due process and proper legal representation to defend such charges in a fair trial under the current legal and judicial system in place in India that his claim for non-refoulement protection failed on all applicable grounds.    

14.On 17 May 2019 the Applicant filed a Form 86 for himself only for leave to apply for judicial review of the Board’s decision, while his wife and daughter filed a separate Form 86 under HCAL 1336/2019 on the same day, but no ground for seeking relief was given in either of their Forms or their supporting affirmations in which they just repeated their claims as before in identical manner but without putting forward any proper ground for their intended challenge.

15.Given the identical factual basis as stated for their claims, I directed on 3 November 2020 that the leave applications of the Applicant and his family be consolidated for hearing, but subsequently on 8 October 2021 upon the application of the Applicant’s wife, I allowed her to withdraw her leave application for herself and the daughter, whom I understand to have subsequently left Hong Kong.

16.Accordingly the Court proceeded to deal with the Applicant’s leave application only, but with which the Applicant was however also seriously out of time, 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.

17.As the last day of the 3 month-period for him to file his Form 86 fell on 27 December 2018, the Applicant was therefore almost 5 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.

18.In the Applicant’s case, a delay of almost 5 months must be considered as very substantial and inordinate, for which he failed to provide any explanation in his Form or affirmation, and that he also failed to attend the subsequently scheduled hearing of his application without any explanation, 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 or valid reason for his such serious delay.    

19.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. As such, 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 reasonably arguable basis for his intended challenge or any merits in his intended application either.

20.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.

21.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 98 – 115 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law 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 reasonably arguable basis to challenge the finding of the Board.  

22.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.

23.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 12^th day of July 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