Sukhwinder Singh v. Torture Claims Appeal Board

HCAL 66/2021

[2023] HKCFI 2302

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 66 OF 2021

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 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 24 August 2017 be refused; and

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

Observations for the Applicant:

1.The Applicant is a 28-year-old national of India who arrived in Hong Kong on 26 February 2014 as a visitor with permission to remain as such up to 8 March 2014 when he did not depart and instead overstayed, and was arrested by police on more than 1 ½ years later on 10 October 2015 for possession of another person’s identity card for which he was subsequently convicted and sentenced to prison for 12 months. After he was referred to the Immigration Department for deportation, he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his uncle 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 Dhunda, Tarn Taran, Punjab, India where his father inherited some farmland from his grandfather and which his father had leased to his uncle for rental income, but after the lease expired in late 2011, his uncle refused to return possession of the land to his father, for which his father had made complaints to the village head and the local police but to no avail.

3.One day in August 2012 when the Applicant took matter into his own hands by trying to repossess the land for his father, his uncle came with his followers to try to stop him which turned into a heated quarrel followed by a fight between them during which both the Applicant and one of his uncle’s men suffered injuries which required medical treatments later in a clinic.       

4.After two further violent encounters with his uncle and followers when he was again attacked and sustained injuries, the Applicant became fearful for his safety and on his father’s advice departed India on 26 February 2014 for Hong Kong where he subsequently overstayed, and after his arrest by the police the Applicant raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 14 July 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

5.By a Notice of Decision dated 2 November 2016 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”).

6.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 risk of him being harmed or killed by his uncle and followers 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 his uncle to seriously harm or kill him which would not have resolved their land dispute, that in any event it was a private land dispute within his family 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 2.9 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 areas of the country away from his home district in large cities such as Delhi where it would be difficult if not impossible for his uncle to locate him.

7.On 14 November 2016 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 7 August 2017 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 24 August 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence that it doubted his claim of fear of harm from his uncle that caused him to flee his country to come to Hong Kong for protection, and that in any event even if his claimed risk is real that it arose form a private land dispute between the Applicant and his uncle without any official involvement that state or 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 that his claim for non-refoulement protection failed on all applicable grounds.

9.On 19 January 2021 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, in which he stated that the Board reached the decision wrongly in assessing his non-refoulement claim in failing to recognize that his right to life must be protected by criminal law from extra-judicial killings that he may face if deported back to his home country.

10.By then the Applicant was however 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.

11.As the last day of the 3 month-period for him to file his Form 86 fell on 24 November 2017, the Applicant was therefore more than 3 years 1 month 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.

12.In the Applicant’s case, a delay of more than 3 years must be considered as extremely substantial and inordinate, for which he failed to provide any explanation in his Form or affirmation, nor did he request any oral hearing for his application, 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.    

13.As for the merits, if any, of his intended application, the sole ground put forward by the Applicant as noted above is just some bare and vague assertions without any necessary or relevant details or particulars or elaboration as to how it would apply to his case or how did the Board err in the decision, or what relevancy is extra-judicial killing to his claim which even on his own case at the highest was just a private land dispute with his uncle without any official involvement that I do not find this ground reasonably arguable 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 merits in his intended application either.

14.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.

15.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 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, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

16.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.

17.Moreover, the Applicant recently on 6 July 2023 filed an affirmation requesting to withdraw his application as there have been changes to his personal circumstances that he no longer needs to make any claim for asylum in Hong Kong. 

18.In the premises, as I am for the given 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 and in view of his latest confirmation of no longer need any asylum protection in Hong Kong, I refuse to extend time and accordingly dismiss his leave application.

Dated the 11^th day of September 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