Onkar Singh v. Torture Claims Appeal Board

HCAL 1257/2023

[2023] HKCFI 2728

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1257 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 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 28 February 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 39-year-old national of India who entered Hong Kong illegally on 5 November 2009 and was arrested by police on the same day. After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his uncle’s creditors over his uncle’s outstanding debts and his sudden disappearance. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Batala Gurdaspur, Punjab, India. After leaving school he worked as a packing worker, and in 2006 started to assist his uncle in the running of his uncle’s shop in Jalandhar selling building materials.

3.In 2008 in order to meet the business loss, his uncle borrowed loans from various creditors to try to keep his business afloat, but one day in early 2009 his uncle told the Applicant that he was taking a trip to Delhi but thereafter failed to return without any news.   

4.Soon his uncle’s creditors started to come to the shop looking for his uncle, and when the Applicant was unable to provide them with any information as to his uncle’s whereabouts, they did not believe him and dragged him to the police accusing him of helping his uncle to hide from his creditors but which the police found no evidence against the Applicant and subsequently released him without charge.

5.Thereafter his uncle’s creditors continued to harass and threaten the Applicant, and after several incidents when he was attacked by some of them that he suffered injuries, the Applicant became fearful for his life, and on 11 May 2009 he departed India for Macau, 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 16 April 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

6.By a Notice of Decision dated 3 June 2015 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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 his uncle’s creditors upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of any of them to seriously harm or kill him other than to press him to disclose the whereabouts of his uncle, that it is not accepted that there would still be any adverse interest in him after all these years since he left the country in 2009, that in any event these were private monetary or debts disputes between his uncle and his creditors 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 Mumbai where it would be difficult if not impossible for his uncle’s creditors to locate him.

8.On 15 June 2015 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 29 June 2016 before the Board but elected not to give any further evidence or to answer questions raised of his claim by the Adjudicator for the Board other than those already provided earlier to the Director. On 28 February 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board accepted the Applicant’s claim of fear of harm from his uncle’s creditors over his uncle’s outstanding debts for which they were trying to get information from the Applicant as to his uncle’s whereabouts, but found no reliable evidence of any real intention of them to seriously harm or kill the Applicant, and that in any event there were private monetary disputes between his uncle and his creditors 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.

10.Meanwhile on 3 April 2017 the Director on his own initiative invited the Applicant to submit any additional facts which may be relevant to his any other absolute and non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”), and in the absence of any response from him, the Director by a Notice of Further Decision dated 25 September 2017 also rejected the Applicant’s BOR 2 Claim upon finding that he had failed to establish a personal and real risk of being arbitrarily deprived of his right to life in violation of BOR 2 ground upon his return to India.      

11.The Applicant never sought any appeal to the Board against this Further Decision of the Director, but on 21 July 2023 he filed a Form 86 for leave to apply for judicial review of the Board’s Decision of 28 February 2017 regarding his claim under torture risk, BOR 3 risk and persecution risk, and put forward the following grounds for his intended challenge:

(1)  Irrationality/Wednesbury unreasonableness in the Board’s decision in finding that his attackers would not seriously harm or kill him despite the facts and evidence of their past attacks suffered by the Applicant;

(2)  That the Board’s decision was not fair or reasonable as required by the Wednesbury test in that it failed to recognize that the Applicant’s right to life must be protected by criminal law from extra-judicial killings that he may face if deported back to his country; and

(3)  That the Board had failed to appreciate or to give proper weight or importance to the presence of State Acquiescence in the Applicant’s case that led to an unfair outcome of rejecting the Applicant’s non-refoulement claim which was a clear case of unfair attitude shown by the Board which is in itself enough to render its decision void.

12.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.

13.As the last day of the 3 month-period for him to file his Form 86 for judicial review of the Board’s Decision of 28 February 2017 fell on 28 May 2017, the Applicant was therefore more than 6 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 more than 6 years must be considered as substantial and inordinate, for which he explained in his Form 86 that he was late because he is uneducated and required much assistance in understanding the Board’s decision and to prepare his application which led to the delay.

15.The record shows that the Board’s Decision was sent on the same day of 28 February 2017 to his then reported address without being returned through undelivered post, and while it is accepted that the Applicant might require legal assistance for his present application, and which it appears that he did have such assistance, that by itself cannot never be accepted as any reason for procedural breaches, and as such I am unable to see any good or valid justification for his such serious delay.    

16.As for the merits, if any, of his intended application, those grounds put forward by the Applicant as noted above are however all just broad and vague assertions of his containing a few key words or phrases but without any particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy were State Acquiescence or extra-judicial killings to his case when the factual basis on even his own case that his claimed risk arose from some private monetary or debts disputes between his uncle and the creditors without any state or official involvement that his such complaints are clearly irrelevant and not applicable. As such, and as none of these assertions were elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for his intended challenge or any merits in his intended application.

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: 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.

18.In the Applicant’s case, the fact is that it has been 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.                

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 recently on 10 October 2023 wrote to request to withdraw his application but without providing any reason for doing so.

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 the absence of any good reason for his serious delay and given his latest request to withdraw his application, I refuse to extend time and accordingly dismiss his leave application and vacate the scheduled hearing therefor.

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

Dated the 20^th day of October 2023

Form CALL-1