Satnam Singh v. Torture Claims Appeal Board

HCAL 1578/2021

[2023] HKCFI 3205

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNO 1578 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:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 44-year-old national of India who entered Hong Kong illegally on 23 January 2016 and was arrested by police on the same day. 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 certain local supporters of the political party Bharatiya Janata Party (“BJP”) as he supported their rival Indian National Congress (“INC”).  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Kurukshetra, Haryana, India.  After leaving school he got married and raised a family with 3 children by working as a fireman in his home district, and supported INC regularly attended their local meetings and rallies.

3.During the local election in 2014, the Applicant was approached by some local BJP supporters to join their party, but when the Applicant refused, they just left without any incidents.

4.However, 2 months after BNP won the local election, the Applicant was again approached by those BJP supporters to join their party, but this time when he refused, they beat him with sticks that he suffered bruises and cuts all over his body, and before they left, they warned that next time if he still refused to join BJP, they would kill him.

5.After the assault the Applicant was taken to the hospital for treatments to broken nose and jaws and other injuries, and after his discharge from the hospital, he fled to New Delhi to take shelter in his sister’s home for 5 months before eventually returning to his home district, but when he saw those BJP supporters approaching him with menace again, he immediately ran away and fled to New Delhi again, and on 21 January 2016 he departed India for China, and from there he later sneaked into Hong Kong, and upon 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 30 November 2018 and attended screening interview before the Immigration Department with legal representation.

6.By a Notice of Decision dated 31 December 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”).

7.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and doubted the credibility of his claim of fear of harm from the local BJP supporters that caused him to leave his country to come to Hong Kong for protection, that in any event even if such risk is real that the level of risk of harm from those local BJP supporters upon his return to India is assessed as low due to the low intensity and frequency of past ill-treatment from them, that in the absence of 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 anyone to locate him.

8.On 11 January 2019 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but before his appeal could be dealt with by the Board, the Applicant on 28 May 2021 wrote to apply to withdraw his appeal as it was safe for him to return to his home country as soon as possible, and upon being satisfied that his application to withdraw his appeal was freely sought, that the Applicant understood the consequences of the withdrawal, and that there is good reason for his proposed withdrawal, the Board by its decision dated 24 June 2021 directed that the Applicant’s appeal be withdrawn and finally disposed of by the Board, and that the Director’s decision on his non-refoulement claim to stand as determined.

9.However, some 4 months later on 17 November 2021 the Applicant filed a Form 86 in these proceedings for leave to apply for judicial review of both decisions of the Director and the Board, in which he explained that he earlier withdrew his appeal before the Board because he was mistaken in thinking that his problems in India had been resolved that it would be safe for him to go home, but later he discovered that his life would still be in danger in his home country and requested the Board to allow him to re-open his appeal but refused by the Board, and so he put forward the following grounds for his intended challenge of both decisions:

(1) That the Director and the Board reached their decisions wrongly in assessing his non-refoulement claim as the decisions were not fair or reasonable as required by the Wednesbury test in failing to recognize that his life must be protected by criminal law from extra-judicial killings that he may face if deported back to his home country;

(2) That the Director failed to appreciate or give the proper weight or importance to the presence of State Acquiescence in his case which led to an unfair outcome of rejecting his claim;

(3) That the Director failed to take into account the Applicant’s argument that he was tortured at the behest of the state law enforcement agencies and the politicians that the state would be rendered liable to him by cause of the state and the public officials failing to provide reasonable protection for its citizens under the duty of due diligence which was a clear case of unfair attitude shown by the Director which in itself is enough to rendered his decision void;

(4) That the Director failed to appreciate that corruption and incompetency in the Applicant’s home country is still a very serious problem as reported by various human rights organizations which stated testament to the Applicant’s assertions that the director failed to attain high standards of fairness required by the Wednesbury test that the Director’s decision should be considered as unreasonable in the scope of public law; and

(5) That the Adjudicator was procedurally improper and unfair when assessing whether or not to accept explanations provided by the Applicant for not giving him a chance to appeal and listen to his story.  

10.Firstly, once the Board has dismissed an appeal against the Director’s refusal of a non-refoulement claim upon a valid withdrawal or abandonment of the appeal by a claimant as a result of a deliberate and informed decision, the appeal is no longer extant and the Board has become functus officio with no jurisdiction to take any further step regarding the appeal, and as Section 37V (2)(b) of the Immigration Ordinance stipulates that a torture claim or non-refoulement claim rejected by a Director is finally determined when the appeal against it has been disposed of, and that notwithstanding the lack of determination on the merits, the dismissal of an appeal on its withdrawal nevertheless disposes of the appeal: see Re Das Purnima Rani, CACV 85/2019 [2019] HKCA 669.

11.If on the other hand, as what the Applicant in the present case seems to be arguing, where a withdrawal or abandonment is invalid and hence a nullity that would have no effect on the appeal which remains extant, so that the Board can resume processing the appeal upon an applicant’s request, but in the present case, the Applicant has failed to provide any details or evidence in support of his application to re-open his appeal, and from his earlier request on 28 May 2021 to the Board to withdraw his appeal, it seems clear to me that he had then made a deliberate and informed decision to do so, and that it was only subsequently that he realized that his life would still be in danger in his home country but as noted above without identifying any information or explanation that he now has to suggest that he had been misled or that he made a honest mistake to withdraw his appeal, in which case that his subsequent change of mind about returning to his home country cannot in my view invalidate his earlier withdrawal of his appeal before the Board.

12.That being the case, I am unable to see any basis for the Applicant to challenge the Board’s decision to withdraw his appeal upon his own request, or its subsequent decision to refuse his request to re-instate his appeal for determination by the Board.

13.As for his proposed grounds against the Director’s decision, even putting aside the fact that he was clearly way out of time to do so under Order 53 rule 4(1) of the Rules of the High Court, Cap 4A which 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, the fact is that they are all just some vague and bare assertions of the Applicant containing a few key words or phrases but without any relevant or necessary particulars or specifics or elaborations as to how they apply to his case or how the Director had erred in the decision, or in what way was the decision unfair or unreasonable, or what relevancy were state acquiescence or extra-judicial killings or torture by law enforcement agencies or politicians have to do with the Applicant’s case. 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 of the Director’s decision 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: 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.

15.In the Applicant’s case, the Director rejected his claim for the thorough and detailed analysis and reasoning set out in his decision with the benefit of hearing him in his screening interview with legal representation and in 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 Director or in the decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Director.  

16.The fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s 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.                

17.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 the part of the Director to apply high standards of fairness in his consideration and assessment of the Applicant’s non-refoulement claim or in the Board’s decision to withdraw and dispose of his appeal.

18.Moreover, the Applicant recently on 5 September 2023 filed an affirmation to withdraw his case as he now wants to return to his home country but without providing any details or explanation as to what has happened to the risk or problem that he claimed to have in India that caused him to seek non-refoulement protection in Hong Kong in the first place.   

19.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 his wish to return to his home country, I accordingly dismiss his leave application.

Dated the 12^th day of December 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