Case Document

100%Judiciary

HCAL 1932/2018

[2020] HKCFI 1753

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1932 of 2018

BETWEEN

	Gurpreet 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:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Decisions respectively dated 13 March 2015 and 16 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decisions”).

2.The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended by adding the Board as proposed respondent, replacing the dates of the Board’s Decisions to 13 March 2015 and 16 August 2018 and by adding the Director of Immigration (the “Director”) as interested party.

The applicant

4.The applicant is an Indian national. He came to Hong Kong on 25 March 2014 and was denied entry by the Immigration Department. On the same day, he lodged his non-refoulement claim.

5.He claimed that if refouled, he would be subjected to a real risk of torture, ill-treatment or persecution because of his enmity with the people from the Supreme Akali Party (“SAP”).

6.His mother died in 2012. He suspected her death was due to Dr. Bajrang’s negligence. He believed that Dr. Bajrang was connected with SAP and a member of the Legislative Assembly in the locality. He reported to police about Dr. Bajrang’s negligence, but police did not take any action. In 2012, he also had a land dispute with his friend’s uncle. He friend is Amana. Amana’s uncle had once threatened that if the applicant ever came to him again, he would certainly kill him. He and Amana had fought with the uncle’s people. He learned that Amana was shot and killed. His father advised him to leave India because of the uncle’s threat. He took his father’s advice and came to Hong Kong.

The Director’s Decisions

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

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

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”).

8.By Notice of Decision dated 30 October 2014 (“the Director’s Decision”), the Director refused his claim on Torture risk, BOR 3 risk and Persecution risk for the reason that his claim was not substantiated. The Director found that the level of risk of harm from the Amana’s uncle upon his return was assessed to be low [10]; that state protection would be available to him [15] and internal relocation was an option open to him [16].

9.By Notice of Further Decision dated 19 January 2017 (the “Director’s Further Decision”), the Director rejected his claim on BOR 2 risk because he was unable to establish it by evidence.

The Board’s Decisions

10.The applicant appealed to the Board against the Director’s Decisions. He attended a hearing before the Adjudicator on 19 January 2015 and 11 February 2015 respectively.

11.By the Board’s Decision dated 13 March 2015, the Board rejected his appeal and confirmed the Director’s Decision. By the Board’s Decision dated 16 August 2018, the Board rejected his appeal and confirmed the Director’s Further Decision.

12.In its Decision dated 13 March 2015, the Board considered the applicant’s evidence and for the reasons set out in paragraphs 8-40, it came to the conclusion that his evidence in relation to medical malpractice of Dr. Bajrang was not acceptable; that it was not unreasonable for police not to accept his complaint against the doctor; that there was no evidence that Amana’s uncle was still interested in him and that Amana was killed in the incident as he alleged [41-46] and finally, that the option of internal relocation was available to him if he returned to India [71].

13.The Board’s Decision dated 16 August 2018 deals with his appeal against the Director’s Further Decision on BOR 2 risk. The Board found that he filed his Notice of Appeal late for 7 months and 9 days [18]: Director’s Further Decision is dated 19 January 2017 and the filing of the Notice of Appeal is 13 September 2017. The Board considered section 37 ZT of the Ordinance and concluded that there was no acceptable reason for the late filing of the Notice of Appeal [18]. The Director had invited the applicant to supply additional information for his assessment of BOR 2 risk. The applicant did not give the Director any additional information. The Board refused to extend time for him to file the Notice of Appeal against the Director’s Further Decision. His appeal was in effect, dismissed.

Application for leave to apply for judicial review

14.The applicant filed Form 86 on 14 September 2018 for leave to apply for judicial review of the Board’s Decision.

15.In his affirmation in support of his application, he said that it was still not safe to go back to his country and his life would be in danger if he went back.

DISCUSSION

16.The applicant did not specify which of the Board’s Decisions he intended to apply for leave for judicial review. Since the Director invited him to give additional information for the assessment of his claim, in particular, BOR 2 risk, it is only logical that all the facts of the case as in the Director’s Decision and the Director’s Further Decision should be considered. Since the applicant did not give additional information to the Director for the assessment of BOR 2 risk, all the facts in the Director’s Decision are the facts for the whole case. I therefore take both of the Board’s Decisions into consideration here.

17.Although the Board did not specifically say that it had considered the facts in its Decision dated 13 March 2015, it simply could not assess the Director’s Further Decision without taking into consideration the facts in the Director’s Decision.

18.The Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377 held that where the applicant files his Notice of Appeal late, the Board has to consider the merits of the case, taking the relevant circumstances into consideration.

19.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“ 13.… …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director), the court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

20.There is no evidence to show that the Board had committed any error in the finding of the facts and in the application of the law to the applicant’s case.

21.The fact of this case is different from the case of Kartini. In this case, the Board had considered all the facts of the applicant’s case whereas in Kartini, the Board did not consider the primary facts of the case.

22.The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.

CONCLUSION

23.I therefore refuse to grant leave for the applicant to apply for his intended judicial review. Accordingly, I dismiss his application.

Dated the 31^st day of July 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 31/7/2020 Gurpreet 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 31/7/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 417/14/11/33/IN123 & BOR 977/17/9/15/IN253 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 248/14 & RBCZ/9001434/16(formerly RBCZ/111/14) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)