Amanpreet Singh Brar v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office and Another

HCAL 904/2018

[2020] HKCFI 2387

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 904 OF 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Order by Deputy High Court Judge C P Pang:

1.  Extension of time for the application for leave to apply for Judicial Review be refused; and

2.  Application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.This is an application for leave to apply for judicial review against the decisions of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”) refusing the applicant’s claim of non-refoulement protection.

2.The applicant, born in 1987, is a national of India.  On 10 January 2015, he surrendered to a police station in Hong Kong claiming that he sneaked into Hong Kong unlawfully by climbing a fence from Shenzhen on or about 15 October 2014.  He then lodged a non-refoulement claim.  He was subsequently released on recognizance.

3.The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para [2-3] of the decision of the Board.  Put simply, the claim was based on the fear that, if refouled, the applicant would be harmed or even killed by the father of her girlfriend.  He fell in love with his girlfriend in 2013.  In early 2014 her father went to speak with the applicant’s parents forbidding him from seeing his girlfriend.  In 3 incidents, her father sent people telling him to stop meeting his girlfriend under threat of death.  Upon the advice of his father, the applicant left India on 6 October 2014 for Hong Kong.

The Director’s decision

4.By notices of decision dated 16 November 2015 and 24 October 2016 respectively, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for reason that the claim was not substantiated.  The first decision covered torture risk^[1], BOR 3 risk^[2], and  persecution risk^[3]. The second decision covered BOR 2 risk^[4]. The applicant lodged an appeal/ petition to the Board against the Director’s decisions.

The Board’s decision

5.The applicant attended a hearing before the Board on 6 December 2016.  He chose to remain silent at the hearing.

6.By a decision dated 9 February 2017, the Board rejected the appeal/ petition confirming the Director’s decisions.  The Board’s decision covered all applicable grounds.

7.The Board gave reasons for rejecting the applicant’s claimat para [18-34] of its decision.  The reasons can be summarized as follows:

(1)  The Board did not accept that the applicant’s girlfriend’s father is interested in locating the applicant all over India, especially when he has long stopped dating his girlfriend [18];

(2)  He can safely live without undue hardship in numerous places in India, other than his home village [18];

(3)  It found no substantial risk or any substantial basis of fear [18];

(4)  He has not suffered severe injury or serious harm which would place him within the criteria of CIDTP and there is reasonable state protection [23];

(5)  The appeal failed independently of a lack of credibility [31];

(6)  Though the Board made “no finding on credibility” [34] the applicant’s failing to raise his non-refoulement claim, when he landed in Mainland China or on his arrival in Hong Kong, cast doubt on his claim [31-32].

Application for leave to apply for judicial review

8.The applicant filed a Form 86 on 23 May 2018 for leave to apply for judicial review of the decisions of the Director and the Board.

9.By a letter dated 4 June 2020 posted to his last updated address with the Immigration Department, the court invited the applicant to submit information including any submissions that he would like to make.  Since then, the applicant has not made any response or submission to the court.  The applicant did not request an oral hearing.  The application is therefore considered on the papers.

10.In the Form 86, the applicant did not set out any ground for relief.  His affirmation in support he stated: “Burden of proof beyond a reasonable doubt was not apply…claimant was deprive the equal right to protection to the due process of law…not consideration base upon BOR 2…” (sic)

Discussion

11.The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  In particular, the role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.

12.When the applicant pursued the appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549.  Therefore, while the court needs to examine the decisions of the Director and the Board with rigorous examination and anxious scrutiny, it is unnecessary to delve into the decision of the Director.  This Observations for the Applicant will only focus on discussing the latter’s decision.

Application out of time

13.It must be pointed out first that the applicant’s intended application for judicial review was made out of time.  Order 53, rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.  In considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

14.The relevant principles have been further explained in the recent case of H v Director of Immigration and AH v Director of Immigration FACV 1 and 2 of 2020 (heard together) given on 14 July 2020.  Briefly, the following are principles relevant to the present case: (a) an application made outside the three-month period will entail undue delay; (b) as such, an extension of time is required, and to justify an extension of time, the applicant must show good reason for extending the period; among the various factors likely to be significant are the merits of the substantive application; (c) indeed, even if there exists good reason for undue delay, the grant of leave to commence judicial review will also depend on the arguability test (among other factors); the arguability test requires the applicant to demonstrate to the court that his case is one that enjoys realistic prospects of success: Re Mohamed Cassim Jawfar CAMP 16/2020, [2020] HKCA 633 para 15.

15.In this case, the 3-month time limit expired on 9 May 2017 and the application was late by about one year.  The delay was substantial and excessive, for which the applicant did not provide any explanation.  I do not see any satisfactory or valid reason for the delay.

Merits of the intended application

16.As for the merits of the intended application, far from a case with realistic prospect of success, I am of the view that the applicant has no prospect of success at all.

17.In the present case the Board, while having doubt on the veracity of the claim, did not choose to reject the asserted primary facts claimed by the applicant.  It however disagreed with the applicant on the assessment of risk flowing from such events.  Taking into account all the circumstances relied upon, it rejected the applicant’s claim based on its assessment of the risk of harm as well as its findings on the availability of state protection and viability of internal relocation.

18.As explained above, assessment of evidence, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director.  This court will not interfere with the decisions unless there is a public law ground for the court to do so.

19.The complaints raised by the applicant in his affirmation are misconceived having no merits at all.  The Board did not apply the criminal standard of proof.  It evaluated BOR 2 risk properly.  The Director also invited the applicant to provide additional materials or facts particularly for the BOR 2 risk and he failed to provide additional information.  On the facts of the case, I cannot see any additional basis for advancing a case on such risk, independent from the BOR 3 risk, the persecution risk, and the torture risk.

20.In the absence of any error of law or procedural unfairness being shown by the applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

21.The applicant’s conduct in Hong Kong by his delay in lodging the claim for protection damaged his credibility and was inconsistent with someone in genuine fear for his life and safety.  The Board has considered his claim in a manner most favourable to him.

22.The Board held an oral hearing gave the applicant a reasonable opportunity to state his case.  He chose to remain silent which was his right.  Even on his own account, the alleged past ill-treatment was of low intensity and frequency.  It came nowhere near the level of severity required by law to constitute torture or CIDTP.  There was no valid reason why his girlfriend’s father would still wish to pursue him after he stopped meeting her for so many years.  There is no substantial ground for believing that the applicant would be at real risk of any type of proscribed harm, if refouled.

23.There cannot be any criticism of its determination which is eminently reasonable.

24.Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law, irrational findings, or procedural unfairness in either of them.  Nor do I see any failure on their part to apply high standards of fairness in their decisions.

Disposition

25.For the reasons given, there is no prospect of success in the applicant’s intended application.  In the absence of good reason for the undue delay in the application, I refuse to grant leave to extend time and dismiss the application for leave for judicial review.

Dated 28 September 2020

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