Brar Simranjeet Singh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1255/2018

[2021] HKCFI 605

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1255 OF 2018

BETWEEN

Application for Leave to Apply for Judicial Review

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

Following:

	consideration of the documents only;  or
	consideration of the documents and oral submissions 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.It is apparent that this is the applicant’s application for leave to apply for judicial review of the Decision dated 17 February 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”) and another Board’s Decision dated 15 November 2017 (“the Board’s Further Decision”).  The applicant described the decision as one dated 17 April 2017.  There is no such decision on the file.  I believe this date is a typo.  Form 86 may be amended accordingly. However, the application’s application is late.  I shall deal with the extension of time for his filing of the application below.

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 to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.  It is further amended that the relief the applicant seeks relief is the Board’s Decision and the Board’s Further Decision.

The applicant

4.The applicant is an Indian national.  He came to Hong Kong on 16 December 2013 where he was denied permission to land whereupon he lodged his non-refoulement claim with the Immigration Department.

5.He claimed that if refouled, he would be harmed or killed by a person called Raj, who had a land dispute with his family in India.  Raj was a tenant of 3 acres of farmland from his family.  His father demanded repossession of the said land and Raj refused to do so.  There were disputes over the possession of the land.  As a result, his father took out a civil acting from the court against Raj.  Raj threatened his father and family to withdraw the action or he would kill him and his brother.  With the assistance of his friend, he came to Hong Kong through Macau.  The details of the incidents are contained in paragraph 6 of the Director’s Decision described below and paragraph 27-49 of the Board’s Decision.

The Director’s Decisions

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

a.  risk of torture under Part VII C 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”); an

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”).

7.By Notice of Decision dated 5 February 2016 (“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 Raj upon his return to India was assessed to be low [11]; that state protection was available to him [13] and internal relocation was an option open to him [14].  By Notice of Further Decision dated 19 April 2017 (“the Director’s Further Decision”), the Director rejected the applicant’s claim on BOR 2 risk for the reason that he failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR being violated upon his return to India.

The Board’s Decisions

8.The applicant appealed to the Board against the Director’s Decision.  He was absent on the date of hearing on 7 October 2016.  The Board decided to consider his appeal in his absence. [62].

9.By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decision for the reasons as set out below.

(1)  Having considered the applicant’s evidence, the Board did not accept his story to be genuine or credible.  It simply refused to accept all the facts as raised by the applicant in support of his case. [73]

(2)  For the reason that his factual evidence was not accepted, the Board rejected the applicant’s claim on Torture risk [75], BOR 3 risk [76] and Persecution risk [77].

(3)  Internal relocation was an option open to him [80].

10.The applicant’s appeal to the Board against the Director’s Further Decision was late.  The Board had taken into consideration its previous Decision.  The Board concluded that there were no special circumstances which made it unjust not to allow the late filing of the 2^nd Notice of Appeal.  The Board refused to extend time for the applicant to file his 2^nd Notice of Appeal.

Application for leave to apply for judicial review

11.The applicant filed Form 86 on 3 July 2018 for leave to apply for judicial review of the Board’s Decision and the Board’s Further Decision.

12.In his affirmations in support of his application, he said that he was not satisfied with the Board’s decisions and that his life would be in danger if her returned to his country.

13.The Board’s Decision is dated 17 February 2017 and its Further Decision 15 November 2017.  His application for leave to apply for judicial review of those Decisions is therefore out of time.

14.The Court will have to consider whether leave should be granted to the applicant to file the application out of time. The Court shall consider the factors as set out in AW v. Director of Immigration and William Lam [2016] 2 HKC 393 at para.  27(3) in considering if extension of time should be extended: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted.

15.The applicant has not set out any reasons for his delay in filing this application. On this basis alone, his application should be dismissed.  However, since he is unrepresented and the consequences to him will be serious, I shall also consider the merits of his intended application before making my final decision.

DISCUSSION

16.As mentioned in paragraph 1, this is a late application. The Court of Final Appeal in H v Director of Immigration & AH v Director of Immigration [2020] HKCFA 22, 14, July 2020, Fok PJ held:

“39. … … a judge cannot proceed with an out of time application for leave to apply for judicial review without considering whether there is good reason to extend time for the making of the application, his decision on that particular issue is not a discrete decision separate to his decision whether or not to grant leave to apply for judicial review. … the aspect of delay is intrinsically bound up with the question whether leave to apply for judicial review should be granted… since the merits of the substantive application is one of the factors relevant to the question of whether there is good reason for extending time to apply (see [37(2)] above), it would be highly artificial to treat a decision on an extension of time application as separate and discrete from the decision to grant or refuse leave to apply.”

I shall now consider the merit of the case.

17.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

18.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.”

19.His ground in support of this application is only his opinion without any evidence or specific in support of it.  It does not assist his application.

20.The Court does not find any error of law or procedural unfairness in the Board’s Decision.  The Board had considered the merits of his case before it made its Further Decision not to extend time to the applicant to file his 2^nd Notice of appeal.  The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

21.There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.

CONCLUSION

22.I therefore refuse to extend time for the applicant to apply for leave to apply for his intended judicial review.   Accordingly, I dismiss his application.

Dated the 15^th day of March 2021

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