Pardeep Singh v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Another
Read the full judgment text of HCAL 710/2018 on BabelCite. This High Court CFI judgment was delivered on 6 March 2019.
1. The Applicant is a national of India. He is now aged 26 (DOB: 20 October 1992).
Cites 5 cases
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HCAL710/2018 [2019] HKCFI 532 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 710 of 2018 BETWEEN
Application for Leave to Apply for Judicial Review Following:
Order by Deputy High Court Judge Josiah Lam:
It is further directed that:
Observations for the Applicant Background 1.The Applicant is a national of India. He is now aged 26 (DOB: 20 October 1992). 2.The Applicant claimed he would be harmed or killed by the father of his girlfriend Gurjot because Gurjot’s father disapproved their relationship. Gurjot’s father was a member of the Legislative Assembly and the Akali Dal Party (“ADP”). 3.The Applicant met Gurjot in the university. They became lovers. In 2010, they decided to marry. The girl’s family objected because the Applicant was poor. They wanted Gurjot to marry someone from a rich family. The two lovers were separated for some time before they resumed seeing each other in early 2011. Gurjot’s family became aware of that later. In October 2011, Gurjot’s father and some men confronted the pair. The father warned the Applicant that he would face bad consequences if he continued seeing his daughter. He then took Gurjot away. 4.In December 2011, the Applicant was assaulted by some armed men and got injured. He did not report the matter to the police because he thought the police would not take any action against Gurjot’s father. 5.In fear, the Applicant moved to live in another place for several months. However, he maintained contact with Gurjot on the phone. 6.In mid-2012, the Applicant went back to his home village. He continued to see Gurjot. Gurjot’s parents prevented their daughter from further contacting the Applicant. Gurjot finally committed suicide in October 2012. 7.In November 2012, some armed men approached the Applicant. They assaulted him. The Applicant was beaten to unconsciousness. He was hospitalised for 10 days. He knew the attack was instigated by Gurjot’s father for his daughter’s suicide. Again, the Applicant did not report the matter to the police. 8.The Applicant moved to live in another place for the next few months. He then left India for Hong Kong on 25 April 2013. He entered Hong Kong as visitor on 26 April 2013. He overstayed from 11 May 2013. On 22 May 2013, the Applicant was arrested by the police. He raised a non-refoulement claim on 7 June 2013. 9.The Applicant did not think the India police would assist him because Gurjot’s father was a man of status. ADP was dominating the India government. 10.The Applicant said internal relocation was not viable. He believed Gurjot’s father could find him eventually if he stayed in the country. 11.In the ensuing two-tier screening process here, the Director of Immigration (“the Director”) and the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) respectively refused the Applicant’s claim with respect to all the four applicable grounds: (i) risk of torture,[1] (ii) risk of persecution,[2] (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4]. 12.On 24 April 2018, the Applicant applied for leave for judicial review. Timeline 13.Things happened in this order: –
Respondents 14.The Unified Screening Mechanism is a two-tier process. The Director screens an applicant’s non-refoulement claim first; the applicant may appeal to the Board which deals with his/her case on a rehearing basis. 15.In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Board and the Director as respondents. The Board is the first putative respondent; the Director is the second putative respondent. 16.In Re Moshsin Ali, the Court of Appeal states that “the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”[5] The Applicant cannot seek leave for judicial review against the Director's decisions. Therefore, I shall deal with his application in relation to the Board's decision only. The Director's decision 17.The Director did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. He also considered reasonable state protection and internal relocation were available to the Applicant in any event. The Director refused the Applicant’s claim with respect to all the four applicable grounds. The Board's decision 18.The Applicant appealed to the Board. The Adjudicator interviewed the Applicant on 3 March 2017. 19.The Adjudicator found there was no supporting proof of the Applicant's claim. On the other hand, there were inconsistent and implausible features in his allegations. For example, the Applicant told the Director he studied in the university from around 2009 to around 2011 but he stated to the Adjudicator it was March 2011 to March 2013. The Applicant was also inconsistent on how Gurjot’s father appeared in the alleged incidents and whether he spoke to him face to face. The Applicant gave very different descriptions to the Director and the Adjudicator of the attack in November 2012 and what happened thereafter. The Adjudicator also noted that when the Applicant arrived in Hong Kong he told the immigration officer he came for sightseeing. The Adjudicator did not find the Applicant credible. He concluded the Applicant failed to prove any risk that warranted non-refoulement protection. 20.On 12 July 2017, the Adjudicator refused the Applicant’s claim with respect to all the four applicable grounds: torture risk, persecution risk, BOR2 risk or BOR3 risk. Grounds of judicial review 21.In his affirmation, the Applicant said he did not receive the Board’s decision. He only learnt of the Board's decision from the Immigration Department in the week before he filed the current application. 22.The Applicant made complaints against the Director and the Adjudicator. As said in paragraph 16 above, I shall deal with his application in relation to the Board's decision only since the Director's decisions had gone on appeal to the Board for rehearing. 23.The Applicant complained the Board's decision was unfair judgment and formula work. He complained the Adjudicator accepted undue country-of-origin information ("COI") on state protection to reach a decision against him. 24.The Applicant complained there was a lack of legal advice and language assistance for his appeal to the Board. Court hearing 25.The hearing took place on 1 August 2018. The Applicant was in person. A Punjabi interpreter provided service in court. 26.The Applicant said he lived in Shum Shui Po in 2014. Then he moved to Jordan in early 2016 and further moved to Tai Kok Tsui in April 2018. He had reported the Jordan address to the Immigration Department but he did not get the Board's decision in July 2017 when he was living in Jordan. He was only informed by an immigration officer a week or 10 days before 24 April 2018. He went to get a copy of the Board's decision personally. A friend then gave him advice. He filed the current application for leave for judicial review on 24 April 2018. 27.The Applicant said his friend helped him to prepare Form 86 and the affirmation. All the grounds of judicial review were in the affirmation. He had nothing to add to those grounds. 28.The Applicant also confirmed he had submitted all to the Director and the Adjudicator for their consideration of his non-refoulement claim. Discussion 29.Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities. 30.A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[6] Nevertheless, it is said in Re Islam Rafiqul: –
Late application for leave for judicial review 31.Order 53 Rule 3(1) of the Rules of the High Court reads: –
32.Order 53 Rule 4(1) and (2) of the Rules of the High Court read: –
33.It is clear from these provisions that no application can be made after the three-month period unless the Court considers that there is a good reason for extending time. The Applicant must provide good reasons for the Court to give an extension of time. It is a pre-requisite in late application for leave for judicial review.[8] If the court is not satisfied that there is any good reason for extending time, then no application for judicial review can be made in accordance with Rule 4(1). In that event, the Court should not proceed to consider if leave should be granted or refused on other grounds.[9] 34.In the present case, the Board’s decision was issued on 12 July 2017. The Applicant only applied for leave for judicial review nine months later on 24 April 2018. Excluding the 3-month grace period for filing, he was late by six months. 35.The Applicant said he did not receive the Board's decision sent to him in July 2017. 36.The Board's decision was sent on 12 July 2017 to the Applicant’s reported address, which was Room D, 6/F, 92 Ap Liu Street, Sham Shui Po, Kowloon. The Director confirmed that in his letter dated 1 August 2018. He also attached the Applicant's notice of appeal, where the Applicant also provided his address as “Building No 92, Apliu Street, Room D, 6/F, Sham Shui Po, Kowloon”. 37.The Applicant in court claimed he lived in Jordan in July 2017 and he had reported his Jordan address to the Director. That was obviously not true. At that time, his reported address was in Sham Shui Po. 38.If the Applicant really did not receive the Board’s decision, it was his own fault because he did not live at his reported address. He was late in his application for leave for judicial review by six months. There was no good reason for the delay, which was undue and substantial. The prejudice that would be caused to the putative respondent(s) was not insignificant and discipline should be maintained in the area of public law. The current application for leave for judicial review involved no issues of general importance and the Applicant's argument had no merits at all (see below). 39.The Applicant complained there was a lack of legal advice for his appeal to the Board. He had been represented by the Duty Lawyer Service up to the Director's decision dated 5 April 2016. 40.The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings.[10] The Applicant failed to show how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process. 41.The Applicant raised his language problem. In the current application, a friend helped him to prepare Form 86 and the affirmation. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English documents at all material times. Furthermore, he was assisted by qualified interpreters while being represented by the Duty Lawyer Service and also in the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem. 42.There was no evidence the Applicant complained to the Adjudicator that he had difficulty in preparing for the appeal. He confirmed his case with the Adjudicator and answered questions. The only inference was that he had prepared enough for the appeal. 43.The Applicant complained the Board's decision was unfair judgment and formula work. It was not true. The Adjudicator’s report showed the Adjudicator studied the Applicant's case in detail and made his judgment according to evidence. His decision was not Wednesbuery unreasonable. 44.The Applicant complained the Adjudicator accepted undue country-of-origin information ("COI") on state protection to reach a decision against him. Again, that was not true. The Adjudicator disbelieved the Applicant's claim and did not accept the Applicant had any risk that warranted non-refoulement protection. In such circumstance, state protection was not a real issue. The Adjudicator need not and did not consider state protection. 45.I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The Adjudicator was acquainted with the facts. He considered the Applicant's case carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. Conclusion 46.The current application for leave for judicial review is late. The Applicant fails to show any good reason for his lateness. There are no justified circumstances that oblige the court to consider his late application for leave for judicial review. I therefore dismiss the application. Dated the 6th day of March 2019
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 [1] As defined in Part VIIC of the Immigration Ordinance, Cap 115, which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. [2] By reference to the non-refoulement principle under Articles 33 and 1A(2) of the 1951 Convention relating to the Status of Refugees. [3] Under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383. [4] Under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383. [5] CACV 54/2018, para 45. [6] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45. [7] CACV 219/2018 [2018] HKCA 570, para 14(1). [8] CACV 110/2016 Kwok Cheuk Kin, para 17. [9] Ibid., para 19. [10] CACV 284/2017 Re Paswan Shibu Lal, para 21. |
Cases cited in this judgment