Case Document

100%Judiciary

CAMP 83/2018

[2018] HKCA 561

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 83 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO. 499 OF 2017)

________________________

BETWEEN
	LAMBA BHARAT BHUSHAN	Applicant
	and
	TORTURE CLAIMS APPEAL BOARD	Putative Respondent
	and
	DIRECTOR OF IMMIGRATION	Putative Interested Party

________________________

Before: Hon Cheung and Kwan JJA in Court

Date of Decision: 28 August 2018

________________________

D E C I S I O N

________________________

Hon Cheung JA (giving the Decision of the Court) :

1) Extension of time to appeal

1.1On 4 May 2018 Deputy High Court Judge (‘DHCJ’) Bruno Chan refused to grant the applicant leave to apply for judicial review against the Decision of the Torture Claims Appeal Board (‘the Board’) dated 1 August 2017.

1.2The applicant’s application to this Court for extension of time for leave to appeal against DHCJ Bruno Chan’s decision was filed on 11 June 2018. The Board and the Director have both indicated their neutral stance regarding the applicant’s application. Pursuant to directions of the Registrar of Civil Appeals dated 13 June 2018 and 20 July 2018, this Court will now deal with the application on paper.

2) Background

2.1The applicant is an Indian national who arrived in Hong Kong on 10 June 2014 as a visitor, but he remained in Hong Kong and overstayed. He was arrested by the police on 15 September 2014. After he was referred to the Immigration Department for investigation, he raised his torture claim on 19 September 2014, on the basis that if he was to return to India, he would be harmed or killed by a property developer called SS over a property dispute back in India. The applicant has since been released on recognizance pending determination of his claim.

2.2The applicant was born and raised in New Delhi, India, where his wife and two sons reside. After he left school, the applicant and his brother have been running a successful business selling auto parts for scooters. The business is still run by his brother after the applicant left India for Hong Kong.

2.3The applicant believes that SS is related to one GS, who is related to the ruling party in India called Bharatiya Janata Party (‘BJP’). The applicant was unable to name any BJP members’ names specifically.

2.4It was alleged by the applicant that he and SS entered into a sale and purchase agreement for a flat in India, which the applicant was given a receipt for the sale. After the applicant had paid all the purchase money for the flat, he was shocked to discover that the same flat was given to another purchaser. After some lengthy discussion, SS agreed that he will refund all purchase money to the applicant.

2.5After a long time, SS did not refund any money to the applicant. The applicant went to SS’s office, and SS offered to give the applicant another flat, which the applicant rejected. The applicant left and demanded repayment.

2.6Shortly after, the applicant went back to SS’s office again. This time, the office had four or five people who the applicant did not know. The applicant believed they were thugs, as the applicant understood by the way they spoke and the language they used. SS was a property developer and the applicant alleged that it was well known that property developers were associated with thugs and had political backings. The applicant had a heated argument with SS, and the thugs joined in the argument. SS and the thugs made threats to the applicant. There was no actual violence. The applicant eventually left.

2.7The applicant left things to cool down for a while. Subsequently, the applicant called SS a few times to ask for a refund. SS said he did not have the money. SS asked the applicant if he wanted the refund or his life.

2.8The applicant arrived in Hong Kong on 10 June 2014 for a visit alone. His wife telephoned him and said that SS and several men went to their home to look for him. His wife said SS threatened to kill the applicant if he ever saw him again in India, and that he would never refund the money paid. No one was harmed.

2.9During the Board’s hearing when the applicant was asked why he did not immediately return to India to check if his family was safe, the applicant replied that his mother could take care of his family for him.

2.10The applicant’s wife later called the applicant to say that SS told her that the applicant must return to India to settle the matter with him within two weeks. The applicant wrote to the Immigration Department to cancel his torture claim, but the Immigration Department said that the process would take around eight weeks before he may be able to return to India. The applicant hence could not return to India in the two weeks as requested by SS.

2.11Later, the applicant knew from his wife that SS changed his mind, and decided that he wanted to kill the applicant if he returned to India. The applicant therefore decided to reinstate his torture claim on 25 September 2015.

2.12The applicant alleged that his wife tried to talk with SS, but SS insisted that he will kill the applicant upon his return. Meanwhile, the applicant’s family suffers no harm in India.

2.13The applicant alleged that he never sought help from the authorities in India because he believed that the matter was going to be solved sooner or later. He believes that there is no possibility for him to relocate in other parts of India because BJP has a wide network across India, the party to whom SS is related to.

3) The Director’s Decision and the Director’s Further Decision

3.TheDirectordecidedagainsttheapplicant’s torture claim on 2 September 2016. The Decision covered Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment) risk, persecution risk, and torture risk. By a Further Decision of the Director dated 31 May 2017, the Director also assessed BOR Article 2 (right to life) risk and decided against the applicant (‘Further Decision’).

4) The Board’s Decision

4.The applicant appealed against the Director’s Decision to the Board on 13 September 2016. The oral hearing was conducted on 20 June 2017. The Board dismissed the applicant’s appeal on 1 August 2017.

5) Decision of DHCJ Bruno Chan

5.DHCJ Bruno Chan considered that the applicant’s grounds for applying for leave to appeal were irrational, that the Director and the Board were entitled to make their respective findings regarding India’s COI, that the applicant did not seek help from the authorities, and that his dispute with SS was of a personal nature without involvement of the State. The Judge held that he did not find any error of law or procedural unfairness, nor any failure to apply high standards of fairness in the Director and the Board’s consideration and assessment of the applicant’s claim. There was no prospect of success in the applicant’s intended application for judicial review.

6) Grounds for extension of time

(1) The summons

6.1As far as we can understand, the applicant states in his summons of 11 June 2018 that he was out of time because he was informed of the Decision of DHCJ Bruno Chan out of time on 5 June 2018 (‘Out of time Argument’).

6.2In his supporting affirmation for the summons the applicant stated that :

‘ 1.No reasonable basis for rejecting my caliam [claim] credibility;

2.Failure to consider the extended form state acquiescence;

3.Failure to fully consider the COI reprts [reports] in assessing risk to the I LA.

4* Irregularity of the decision-maker being a different person than the interviewing officer;

) procedural impropriety/unfairness (failure to investigate into the country of origin information of India);

5) Irrationality (failure to place weight on relevant information and/or selectively placing weight on irrelevant information);

6) Irrationality (failure to consider a consistent system of human right violations);

(6) Irrationality (failure to consider if state protection exists in India);

(7) Irrationality (placing weight on irrelevant matters, or on inaccurate or incorrect fact(s));

(8) Procedural impropriety (failing to call for psychological and/or psychiatric reports and/or evaluations);

(9) Procedural impropriety (applying the incorrect standard of proof);

10.No reasonable basis for rejecting my caliam [claim] credibility;

11.Failure to consider the extended form state acquiescence;

12.Failure to fully consider the COI reprts [reports] in assessing risk to the I LAMBA BHARAT BHUSHAN.

13* Irregularity of the decision-maker being a different person than the interviewing officer;

14.No proper basis for consideration of internal relocation;

My life fear if I retrun [return] my home country my life risk or receiving death.’

6.3The applicant did not file any Skeleton Submission in support of his application.

7) Legal principles

7.The relevant factors to consider for extension of time to appeal are as follows :

(1) Length of the delay;

(2) Explanation of the delay;

(3) Merits of the substantive application;

(4) Prejudice; and

(5) Questions of general public importance.

Xie Jing Feng v Director of Immigration & Anor [2018] HKCA 145, at paragraph 4.1.

8) Our view

(1) Explanation for delay

8.1The applicant’s case that he was informed of the Decision of DHCJ Bruno Chan out of time is a bare allegation without particulars. This explanation has no merits.

(2) Reasons for the application

8.2The reasons given by the applicant do not address at all the reason why he wishes to make an application for extension of time on the facts of his case. In any event the grounds of appeal advanced by him are not reasonably arguable. He seems to be using certain standard ‘pro forma’ grounds which the Court noticed other torture claim applicants had also used when some of these grounds are not related to his case. For example, DHCJ Bruno Chan has explained that the applicant’s ground of ‘irregularity in the decision-maker being a different person than the interviewing officer’ makes no sense, because it is hard to comprehend how the applicant would want the same officer in the Immigration Department who rejected his claim to hear his appeal again instead of the Board.

8.3It further lies ill for the applicant to make extensive argument regarding BOR 2 claims on appeal, when he was requested to provide information to support his BOR 2 claim by the Director but failed to do so. In any event, the Board has already assessed and considered the BOR 2 risk and held that the applicant has presented no credible evidence that his life was at a real risk. There is also no evidence that after more than three years, his life would still be at risk if he was to return to India.

8.4We have said repeatedly that the evaluation of risk of harm is primarily a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The Court, especially the Court of Appeal, will not usurp their roles as primary decision makers. Judicial review is not an avenue for revisiting the assessment of the Director or the Board in the hope that the Court may consider the matter afresh in the absence of any legal error. See: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; and Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400.

9) Disposition

9.1For the reasons as aforesaid, it cannot be seen that there is any error of law or procedure in the proceedings before the Director or the Board, and there is no reasonably arguable basis to challenge the fairness of the process. DHCJ Bruno Chan was correct to hold that leave to apply for judicial review should not be granted.

9.2The present application is not reasonably arguable. The application is accordingly dismissed.