Case Document

100%

HCAL 2168/2020

[2024] HKCFI 2898

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2168 OF 2020

BETWEEN
	Sukhdev 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 39-year-old national of India who had previously in 2006 overstayed in Hong Kong and was subsequently repatriated to India again sneaked back into Hong Kong on 21 October 2013 and was arrested by police on 11 June 2014 for possession of a forged identity card, for which he was convicted and sentenced to prison for 18 months. After his discharge from prison and was referred to the Immigration Department for deportation, he raised a non-refoulement claim for protection on the basis that if he returned to India he would be harmed or killed by certain local gangsters for reporting their illegal activities to the police. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Narayan Garh, Chheharta, Amritsar, Punjab, India. After leaving school he assisted in his father’s floor mill shop in his home village where there were the Bikram brothers who were drugs dealing gangsters, and in 2005 they sold drugs to the Applicant’s elder brother and turned him into a drug addict.

3.As a result the Applicant reported the illegal activities of the Bikram brothers to the police which subsequently led to their arrest but only the younger brother was convicted and sent to prison, for which the elder brother threatened to kill the Applicant in revenge.

4.Fearing for his life the Applicant therefore left the country in December 2005 to come to Hong Kong but was subsequently arrested and repatriated to India in 2010, and as he was afraid to return to his home village, the Applicant instead stayed in Amritsar City.

5.However, later when he heard that the Bikram brothers were still looking for him everywhere, the Applicant again departed India in late 2013 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 17 August 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

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

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 the Bikram brothers 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 to seriously harm or kill him or any reason to expect that after all these years that they would still have any adverse interest in the Applicant, that in any event 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 millions 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 anyone to locate him.

8.On 10 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 26 July 2017 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 8 November 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from any gangsters that caused him to leave his home country to come to Hong Kong to seek protection, that his credibility was further undermined by his appalling immigration history and his failure to raise his claim upon first arriving in Hong Kong until his arrest by the police more than 6 months later, and concluded that he was not a witness of truth rejected his claim as not credible that his claim for non-refoulement protection failed on all applicable grounds.

10.On 28 October 2020 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 other than a mere bare assertion that the Board reached the decision wrongly in assessing his claim but without providing any relevant or necessary details or particulars or elaboration as to how it was.

11.By then the Applicant was also 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 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.

12.As the last day of the three-month period for him to file his Form 86 fell on 8 February 2018, the Applicant was therefore more than 2 years 8 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.

13.In the Applicant’s case, a delay of more than 2 years 8 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 decision was sent on the same day of 8 November 2017 to the Applicant’s then reported address without being returned through undelivered post, I am unable to see any good or valid reason for his such serious delay.

14.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. 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.

15.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.

16.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 36 – 49 of its decision with the benefit of hearing him in his oral evidence and 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 Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

17.Furthermore, 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 even 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 agreed and confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

18.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 their consideration and assessment of the Applicant’s claim.

19.For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and given the recent confirmation by the Immigration Department of the Applicant’s recent departure of Hong Kong for his home country, I accordingly dismiss his leave application.

Dated the 24^th day of October 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 24 October 2024 Sukhdev 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 24 October 2024 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 5159/16/11/98/IN1089 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2439/15 (formerly RBCZ 13953/15) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)