Sandeep Singh v. Torture Claims Appeal Board

HCAL 1170/2021

[2023] HKCFI 2303

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNO 1170 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 14 May 2021 be refused; and

2.  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 entered Hong Kong illegally on 15 October 2016 and surrendered to the Immigration Department on 17 October 2016 when he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his neighbour over their land dispute in his home village.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Lohat Baddi, District Ludhiana, Punjab, India where he inherited a piece of land from his father and on which he farmed to make his living.

3.In March 2016 he was approached by his neighbour, a local leader of the political party Shiromani Akali Dal (“SAD”), for the purchase of his land but was refused by the Applicant as the offered price was too low, whereupon his neighbour became furious and demanded the Applicant to reconsider his proposal or else there would be serious consequences.

4.About 2 weeks later his neighbour returned with 2 of his followers again and demanded to purchase the land, and when the Applicant still refused his offer, the neighbour and his men beat him with wooden sticks until he lost consciousness, and was subsequently taken to the hospital for medical treatments.

5.Upon discharge from the hospital the Applicant reported the assault to the police who however regarded it as their private land dispute and refused to take any action.

6.After 2 further incidents when his neighbour and his men escalated their threats against the Applicant by firing gun shots at him, the Applicant became fearful for his life and fled from his home village to take shelter in his uncle’s place in Jalandhar City, and then to Chandigarh City, but as he still feared of being located by his neighbour, the Applicant on 1 September 2016 departed India for Thailand, and then arrived in Hong Kong on 5 September 2016, but he was refused entry by the Immigration Department and returned to India on the same day.        

7.Some 3 weeks later the Applicant again departed India for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 22 October 2018 and attended screening interview before the Immigration Department with legal representation.             

8.By a Notice of Decision dated 7 November 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”).

9.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 neighbour upon his return to India due to the low intensity and frequency of past ill-treatment from his neighbour, that there is no evidence of any real intention of his neighbour to seriously harm or kill him as it would not assist him to get the land, that in any event it was a private land 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 areas of the country away from his home district in large cities such as Delhi or Mumbai where it would be difficult if not impossible for his neighbour to locate him.

10.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 11 November 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 14 May 2021 his appeal was dismissed by the Board which also confirmed the Director’s decision.

11.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 neighbour over their land dispute that caused him to flee his country to come to Hong Kong, and that in any event even if such risk is real that it arose from a private land dispute between the 2 of them 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.    

12.On 19 August 2021 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 or in his supporting affirmation of the same date to which he just attached a copy of the decision but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application.

13.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.

14.As the last day of the 3 month-period for him to file his Form 86 fell on 14 August 2021, the Applicant was therefore 5 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.

15.In the Applicant’s case, a delay of 5 days may not be considered as significant, for which he did not provide any explanation in his Form or affirmation, while the record shows that the decision was sent on the same day to his last reported address without being returned through undelivered post, but given the relative insignificance of his delay, I propose to focus on the merits, if any, of the Applicant’s intended application.    

16.However, as noted above the Applicant has failed to put forward any proper ground for his intended challenge either in his Form or affirmation. 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.

17.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: ReLakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst vDirector of Immigration [2018] HKCA 524.

18.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 if real 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 vJenkins & Anor [2013] 1 HKC 526.                 

19.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.

20.Moreover, the Applicant has recently filed an affirmation requesting to withdraw his application as he no longer has any problem returning to his home country.

21.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 view of his latest confirmation of having no problem returning to his home country, 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