Case Document

100%Judiciary

HCAL 1724/2018

[2020] HKCFI 762

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1724 of 2018

BETWEEN

	Sarabjit Singh	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	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 documents only; or
	consideration of documents and oral submission by the Applicant in open court;

Order by Deputy High Court Judge K.W. Lung:

(1) Extension of time for application for leave to apply for judicial review of the decision of Torture Claims Appeal Board dated 20 March 2018 be refused; and

(2) Application for leave to apply for judicial review be dismissed.

IT IS FURTHER DIRECTED that:

(1) If the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

(2) When filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

(3) The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

(4) If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

(5) Liberty to apply.

Observations for the Applicant:

THE APPLICATION

The applicant

1.The applicant is an Indian national. He came to Hong Kong on 13 January 2013 as a visitor and was permitted to stay until 27 January 2013. He overstayed. On 20 February 2014, he surrendered to the Immigration Department. He lodged a non-refoulement claim on 20 February 2014 and 18 March 2014 respectively. He withdrew his application on 5 December 2016. On 30 December 2016 he lodged a non-refoulement claim again.

2.He claimed that if refouled, he would be harmed or killed by his girlfriend’s brother, Sukhdev as he opposed his relationship with his girlfriend in India and he also had a land dispute with his girlfriend’s family members.

3.In 2011, there was a fight between the families in the street after a quarrel between them. They fought with iron rod and wooden sticks. The applicant was injured with wounds in his head, left elbow and right knee. They reported this incident to police. But the police did not take action. He was taken to hospital where he received medical treatment. In early 2012, the applicant was again assaulted by Sukhdev and his men. They hit him with bare hands for around five minutes. They told the applicant to leave Gurpreet Kaur and threatened to kill him. The applicant lived in Jalaldhar in order to avoid Sukhdev. He lived there for seven months without any troubles. He decided to come to Hong Kong in order to save his life.

The Director’s Decision

4.The Director considered his application in relation to the following risks:

a. torture risk under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”);

b. Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

5.By Notice of Decision dated 31 May 2017, (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.

The Board’s Decision

6.The applicant appealed to the Board against the Director’s Decision and he attended a hearing before the Adjudicator on 22 February 2018.

7.By Decision dated 20 March 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.

8.The Board considered the applicant’s evidence. It gave the benefit of the doubt to the applicant and accepted the facts he alleged. However, it found that the applicant was unable to make out his case for non-refoulement protection for the reasons below.

a. Sukhdev was only trying to scare or intimidate him into terminating his relationship with his sister and he did not intend to kill the applicant or cause him serious harm [22 (A) (a)]

b. There was no evidence that the government was involved in the incidents [22(A) (b)].

c. A reasonable level of state protection was available to the applicant [22(A) (c)].

d. The applicant failed to show that there were substantial grounds for believing that he would be subjected to torture if he returned to India [22(A) (d)].

e. His case did not fall within the contextual meaning of persecution under the Convention [22(C) (b)].

f. His claim on the BOR 2 risk could not succeed [22(D) (c)].

g. Internal relocation was available to him [24].

Application for leave to apply for judicial review

9.He filed Form 86 on 23 August 2018 for leave to apply for judicial review of the Board’s Decision. However, his application is late, the date of the Board’s Decision being 20 March 2018. I shall consider the merits of his application before deciding whether extension of time should be granted to the applicant for this application.

10.Attached to Form 86 are his grounds in support of his application, which I shall set out below.

1. The Board had unlawfully fettered its discretion by refusing his appeal on the grounds that they did not satisfy the requirement.

2. The Adjudicator acted in a procedurally unfair manner.

3. The Board’s Decision was unreasonable or irrational in the public law sense, or are a result of procedural errors of unfairness.

4. The Board failed to meet the greater care and duty owed to a self-represented claimant.

5. The hearing bundle was given to him shortly before the hearing and was without translation, causing confusion at the hearing.

6. The Board had relied upon hearsay news or outdated cases, making speculation that he would be safe if he returned to India.

DISCUSSION

11.The applicant appeared before me. He confirmed that he was free to express himself before the Immigration officer and the Adjudicator. Also, he explained that he was detained in prison between September 2017 and July 2018, which is why he was late in his application.

12.It is obvious that the Board, having accepted his facts, applied the relevant statutory provisions and Convention to the facts.

13.The Court of Appeal in Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14 held that evaluation of evidence is essentially 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 will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

14.I shall deal with his grounds.

15.He has confirmed that he had no problem with the hearing bundle for the appeal. Ground (5) fails.

16.All other grounds do not sustain as they are opinions without any evidence or particulars in support of them.

17.The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.

CONCLUSION

18.Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him extension of time for this application. Also, I refuse to grant him leave to apply for the intended judicial review. Accordingly, I dismiss his application.

FRUTHER DIRECTIONS

19.It is further directed that:

a. If the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

b. When filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

c. The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

d. If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

e. Liberty to apply.

Dated the 12^th day of May 2020

	(Mike Mak)
	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 12/5/2020 Sarabjit 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 12/5/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 7462/17/6/158/IN1414 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 835/17 (formerly RBCZ 10090/17) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)