Case Document

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HCAL 1132/2021

[2024] HKCFI 1825

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1132 OF 2021

BETWEEN
	Sandeep Singh	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 38-year-old national of India who entered Hong Kong illegally on 12 February 2016 and surrendered to the Immigration Department on 25 February 2016 when he raised a non-refoulement claim for protection on the basis that if he returned to India he would be harmed or killed by his paternal uncle and cousins over their land dispute with his mother 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 Chogawan, District Amritsar, Sub-district Ajnala, Punjab, India where his father and his paternal uncle inherited their shares of his grandfather’s lands in the village, and upon the passing of his father in 2007, his father’s land then passed to his mother who ran a garment shop on the land assisted by the Applicant.

3.In 2013 his paternal uncle proposed to purchase the land from the Applicant’s mother, but when it was rejected, his uncle and sons started to harass and intimidate the Applicant’s mother by threatening to harm the Applicant, and on one occasion in October 2014 the Applicant was assaulted by his uncle’s sons with hockey sticks that he subsequently lost consciousness and was taken to the hospital for medical treatments.

4.Upon his discharge from hospital, the Applicant was sent by his mother to Village Ghuman Gurdaspur to take shelter in his sister’s place before moving on to his maternal uncle’s home in Guwahati, and on 10 February 2016 the Applicant 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 December 2017 and attended screening interview before the Immigration Department with legal representation.

5.By a Notice of Decision dated 25 January 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”).

6.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 paternal uncle and cousins 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 them to seriously harm or kill him other than to press his mother to sell her land to his uncle, that in any event it was a private land dispute between his paternal uncle and his mother 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 anyone to locate him.

7.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but before it could be heard by the Board, the Applicant on 11 December 2019 in writing applied to withdraw his appeal as it was safe for him to return to his home country, and upon being satisfied that his application to withdraw his appeal was freely sought, that he understood the consequence of his withdrawal, and that there was good reason for his proposed withdrawal, the Board by a Decision dated 9 January 2020 directed that the Applicant’s appeal be withdrawn, that no further action was to be taken regarding his appeal, and that it also confirmed the Director’s decision.

8.However, more than 1 ½ years later on 11 August 2021 the Applicant filed a Form 86 for leave to apply for judicial review of the Board’s decision, and no ground for seeking relief was given in his Form or in his supporting affirmation of the same date in which he just stated that he does not agree with the Board’s decision as his life is still in danger in his home country that he cannot return to India but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application.

9.By then the Applicant was clearly 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 day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

10.As the last day of the three-month period for him to file his form 86 fell on 9 April 2020, the Applicant was therefore some 1 year and 4 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.

11.In the Applicant’s case, a delay of 1 year and 4 months must be considered as extremely substantial and inordinate, for which he did not provide any explanation or reasons in his Form or affirmation, and as the record shows that the Board’s decision was sent on the same day of 9 January 2020 to the Applicant at his then reported address without being returned through undelivered post, I am unable to see any good or valid reason for his such serious delay.

12.As for the merits, if any, of his intended application, as noted above that the Applicant has failed to put forward any proper ground for his intended challenge of the Board’s decision which in fact as noted above allowed the withdrawal of his appeal at his own request and upon his written confirmation that it was safe for him to return to India. As such, and in the absence of any error of law or irrationality or procedural unfairness in the Board’s decision clearly and properly identified by the Applicant, I am unable to find any reasonably arguable basis for his intended challenge or any merits in his intended application.

13.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.

14.In the Applicant’s case, the Board disposed of the Applicant’s appeal at his own request in writing and upon being satisfied that the Applicant fully understood the consequences of his action and that he had good reason for the withdrawal of his appeal against the Director’s refusal of his non-refoulement claim upon what seems to me a valid withdrawal or abandonment of his appeal in the sense of being the result of a deliberate and informed decision of the Applicant, it is therefore clear that the appeal is no longer extant and the Board had become functus officio with no jurisdiction to take any further step regarding the Applicant’s appeal, as held by the Court of Appeal in Re Das Purnima Rani, CACV 85/2019 [2019] HKCA 669, that a non-refoulement claim rejected by the Director is finally determined when the appeal against it was disposed of, as stipulated by Section 37V(2)(b) of the Immigration Ordinance, notwithstanding the lack of determination on the merits of the claim, as the dismissal of an appeal on its withdrawal nevertheless disposed of the appeal, as otherwise not only would there be no finality in the determination of such claims, much room would be created for abuse by claimants making last minute withdrawals and then subsequently applying for reinstatement of the appeals so as to delay their removal from Hong Kong (see [41] of the Judgment dated 13 June 2019).

15.Furthermore, the fact is that it has 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, a decision also confirmed by the Board, there is simply no justification to afford the Applicant with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

16.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 the Director’s consideration and assessment of the Applicant’s non-refoulement claim or in the Board’s decision to allow the Applicant to withdraw his appeal at his own request.

17.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 15^th day of July 2024

(Chung Lai Fan, Christine)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 15 July 2024 Sandeep Singh Applicant’s ref no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 15 July 2024 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 10167/18/2/51/IN1914 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 3586/17 (formerly RBCZ 12262/16)[T8S130] Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)