Karamjit Singh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 1141/2017 on BabelCite. This High Court CFI judgment.
1. This is an application for judicial review of the decision of the Adjudicator to refuse late filing of a Notice of Appeal. As the background to the matter is of relevance to that decision, the Applicant’s immigration history and basis of claim have been included.
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HCAL 1141/2017 [2018] HKCFI 1890 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1141 of 2017 BETWEEN
Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge’s decision (Ord. 53 r. 3) Following;
Order by The Honourable Mrs Justice Campbell-Moffat:
Observations for the Applicant: 1.This is an application for judicial review of the decision of the Adjudicator to refuse late filing of a Notice of Appeal. As the background to the matter is of relevance to that decision, the Applicant’s immigration history and basis of claim have been included. Procedural history 2.The Applicant first entered Hong Kong in 2004, as a visitor, and did so on a number of occasions, but on 15 August 2004, he entered and failed to leave. He eventually surrendered to the Immigration Department on 23 March 2007. He was convicted of overstaying on 17 April 2007 and sentenced to six weeks’ imprisonment. At the end of that sentence, the Applicant was transferred to Castle Peak Bay Immigration Centre and whilst there, made a torture claim. He was therefore released upon recognisance on 1 June 2007. On 10 July 2007, he entered into a marriage with a Filipino permanent resident and made a claim for a dependent visa on 2 August 2007. That Application was withdrawn in July 2009. The torture claim was refused on 18 July 2013 and was unsuccessfully appealed but by that stage the Applicant had failed to surrender to his recognisance. On 31 May 2014, he was arrested for employing a person not lawfully employable and released upon police bail. He absconded thereafter. 3.On 21 September 2016, the Applicant returned to Hong Kong via the international airport, claiming to have exited Hong Kong by a similar means. He was refused permission to land and was placed in police custody and prosecuted for several offences, for which he received 17 months’ imprisonment on 24 September 2016. The Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 22 March and 13 April 2017, whilst in prison. His NRF claim form was submitted on 26 June 2017. 4.The Applicant attended a screening interview on 7 August 2017, whilst serving his sentence of imprisonment. The Director of Immigration (“the Director”) dismissed his claim on all grounds on 11 August 2017. The Applicant filed his Notice of Appeal out of time on 22 September 2017. The adjudicator of the Torture Claims Appeal Board, Li Wai-chi (“the Adjudicator”), considered the application for late filing as a preliminary matter. The Adjudicator refused that application on 22 December 2017. 5.The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review against the decision of the Adjudicator, on 27 December 2017 and did not request an oral hearing. The matter was therefore considered on the papers. Background 6.The Applicant is an Indian national. He was born on 11 March 1981, in the Punjab. He is a Sikh and of the Jatt caste. He was previously married, as mentioned above, but currently cohabits with another Filipino and has a son. His claim is based upon his relationship with a girl from his home village (“the Indian girlfriend”). 7.In 1995, at the age of 14, the Applicant started dating a class mate whose family supported a different political party. Whilst the Applicant was an ordinary member of the Congress party, which was the ruling party in the Punjab, the Indian girlfriend’s family were influential in the Shiromanai Akali Dal Party (“SAD”). Her family disapproved of the relationship. It was the difference in political affiliation, rather than his social status, which first caused a dispute between the Applicant and one of her brothers in 1999. Between them, they agreed to a fight which included several other young members of both parties. The group of youths from SAD lost and that resulted in death threats to the Applicant from the Indian girlfriend’s brother. 8.Later in 1999, the Applicant maintains that he was attacked by the brother and a group of his friends wielding a chopper and hockey sticks. Part of a finger was severed in the attack and he was hit in the back of the head and lost consciousness. He awoke in hospital with 43 stitches in his right hand and seven stitches to his skull. The Applicant was hospitalised for two months. The injury to his head has left him with memory loss, headaches and partial blindness as well as depression. He made a report to the police but does not believe it has been followed through. 9.The Applicant eventually fled to Libya in 2000, where he worked as a carpenter until 2002, during which time the brother had stopped looking for him. The Applicant therefore returned to India and re-commenced his relationship with the Indian girlfriend, who was by now married. According to the Applicant this resulted in an attempted arrest for drug trafficking, by the local police, which the Applicant believed was set up by the Indian girlfriend’s family. He was able to avoid arrest by fleeing to relatives and he remained safe for some time before being arrested when he attended a family wedding in 2004. 10.The Applicant was detained for three days at City II Moga Police Station, during which time he was left naked and tied overnight. During each of the days, he was beaten with a leather strap and batons by four to five policemen and suffered swelling and bruises. After three days, the Applicant was bailed and immediately fled to Hong Kong via Thailand using his own passport. Subsequent to coming to Hong Kong, the Applicant maintains that his uncle settled the false allegation of drug trafficking, which is no longer outstanding, but he still fears retribution from the family of the Indian girlfriend and from her husband (“the Husband”). 11.In 2014, the Applicant returned to India and made contact again with his Indian girlfriend. Her husband then threatened to kill him, but did no more than that. The Applicant went into hiding once more, but in February 2015, was attacked by the Husband and his friends and was shot at because the girlfriend had left the Husband and returned to her parents. Both incidents were reported to the police but no follow up action was taken. For a short period of time in 2015, the Applicant came to Macau and stayed with the sister of a woman he had had a relationship with in Hong Kong (“the Filipino girlfriend”) but then returned to India to his home town. He was attacked once more by friends of the Husband using swords, wooden sticks and guns. He was beaten on the head with the sticks and fell unconscious. He maintains that his legs, palms and head were seriously injured and he was hospitalised for four days. This too was reported to the police and they arrested the Husband but he was later released on bail. 12.The Applicant fled once more to relatives and then returned to Macau in June 2016 and once more stayed with the sister of the Filipino girlfriend. However, when his visa expired, he returned to his home in India, intending to sell his land to settle bills and to set up a business in Delhi, but he came to know that the Husband had found out about his whereabouts and was still threatening to kill him and so he came to Hong Kong from India on 20 September 2016. The non-refoulement claim 13.Under the Unified Screening Mechanism (“USM”), the Applicant’s claim is to be assessed on all applicable grounds which are:
14.It is the duty of the Director and the Adjudicator to weigh all of the available credible, reliable evidence and ascertain whether the Applicant had established the factual basis of his claim. The Director and the Adjudicator must then assess the level of harm the Applicant says he fears. Each ground of claim above has a relevant level of risk. It is for the Applicant to establish that he is the subject of such risk. Under the HKBORO, he must show substantial grounds for believing that the harm which he fears is “foreseeable, real, personal and present”. The question is whether there is a real risk or real chance of the occurrence or recurrence of the harm which he fears. Decision and further decision of the Director 15.The Director analysed the Applicant’s claim on all applicable grounds. He considered a wide range of documentary evidence including documentation submitted by the Applicant as to the general situation in India at present. He correctly set out the law, key legal principles and made reference to relevant materials. The Applicant was given every opportunity to state his case and to supplement the evidence before the Director, which he did. In coming to his decision to reject his claim under the various heads, he acted reasonably and explained his decision on the merits in a clear and intelligible manner. This was an entirely private matter made worse by the Applicant’s behaviour. He had several opportunities to re-locate and yet he kept returning to his home village. Save for the incident with the brother, the claim is based upon the threats coming from the Husband. The threat is a localized one. Decision of the Adjudicator 16.The filing of the Notice of Appeal was late. The Applicant had 14 days to file a Notice of Appeal[1], the deadline for which was 28 August 2015. The Notice of Appeal was dated 22 September 2017. It was 25 days late. He maintained that he had not received the appeal form until 21 August 2017 and then sought the help of a friend who “made a mistake”. 17.The Adjudicator noted that the statutory regime for the late filing of the Notice of Appeal is strict. The burden was upon the Applicant to establish his claim and to comply with the time limit[2]. The Adjudicator may only take into account the statement of reasons provided in the application for late filing; documentary evidence in support of the application and other relevant matters known to the Board. It is incumbent upon the Applicant to show special circumstances which would make it unjust to refuse his application for late filing. 18.The process of consideration of an application for late filing of a Notice of Appeal is carried out without a hearing[3] by way of preliminary decision. The Adjudicator applied the correct legal principles including consideration of The Secretary of State for the Home Department v Begum (2016) EWCA Civ 122, 3 March 2016 in which he reminded himself upon the three-stage approach which is:
19.The Adjudicator considered the chronology of events as submitted by the Director and found that no good reason for the late filing had been given. She stated that she had taken into account all relevant circumstances including the factual basis of the Applicant’s claim and found it just and fair to refuse the application. Leave to apply for judicial review 20.Judicial review is not a rehearing of the merits of the Applicant’s original application for refugee status. This is an application to apply for leave to judicially review the Decisions of the Director of Immigration and the Adjudicator. The Applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by those bodies or persons when dealing with his application in order to obtain leave to judicially review them. Grounds of review 21.There were no grounds of review save for a general allegation that the Adjudicator had been unfair and unreasonable. He has not complained of any specific procedural irregularity, unfairness or unreasonableness. The Applicant has a duty to state the grounds of his intended judicial review and that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave. Conclusion 22.I have considered the papers carefully. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. In so doing, I have considered not only the refusal by the Adjudicator but also the Decision and the basis of the Applicant’s claim. Despite the onus being upon the Applicant, the Director engaged in a joint endeavour with the Applicant and considered all relevant criteria, gave the Applicant a reasonable opportunity to state his case and enquired into that case appropriately. The onus was on the Applicant to file his Notice of Appeal in a timely fashion and, if he failed to do so, give reasons for why a late filing should be allowed. He failed to do so in all respects. There is no criticism of the determination of the Director, nor of the determination of the Adjudicator. 23.In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review of the decision of the Adjudicator to refuse to allow late filing of his Notice of Appeal and, as such, there would be no realistic prospect of success if he were to be granted leave. I therefore refuse leave for judicial review. Dated 28th day of September 2018.
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
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