Dhillon Gurjotpreet Singh v. Torture Claims Appeal Board / Non-efoulement Claims Petition Office

HCAL 1236/2018

[2021] HKCFI 645

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1236 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 submission by the Applicant in open court.

Order by Deputy High Court Judge C P Pang:

  1.  Extension of time 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 decision of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) confirming the decisions of the Director of Immigration (“the Director”) refusing the applicant’s claim of non-refoulement protection.

2.The applicant, born in 1991, is a national of India.  He arrived in Hong Kong from India by air on 9 March 2015.  Upon immigration examination at the Hong Kong airport, he claimed that he came to Hong Kong for sightseeing.  He was refused permission to land.  While pending the repatriation arrangement, he lodged a non-refoulement claim. 

3.The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para [4-19] 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 members of the Shiromani Akali Dal Party (“SAD”).  He claimed that he was a supporter of another political party, the Congress Party.  In 2014 there was an election for the position of Legislative Assembly in Moga District.  Before the election, he was attacked once by SAD members.  Two weeks after the SAD candidate won the election, the applicant was again attacked by SAD members after he had a haircut in a salon.  On a subsequent occasion, SAD members blocked his way when he was on a motorcycle.  He successfully escaped to the farmland where his father and his workers were working.  Upon his parents’ advice, he went to another area to live with his maternal aunt for a few days.  During the stay with his aunt, he received threatening phone calls from SAD member threatening he would not spare his life.  Taking his father’s advice, he left India with his passport in order to save his own life.

The Director’s decisions

4.By notices of decision dated 9 June 2015 and 28 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].

5.Having taken into account all relevant circumstances including the low intensity and frequency of the alleged past ill-treatment, the Director assessed the level of future risk of harm as low.  He also found that the availability of reasonable state protection and internal relocation option would further lower or negate the perceived risk of harm.  The applicant lodged an appeal/ petition to the Board against the Director’s decisions.

The Board’s decision

6.A hearing before the Board was scheduled for the applicant on 20 December 2016.  The applicant did not attend the hearing.  The Board issued a letter dated 20 December 2016 to the applicant giving him notice of the intention of the Board to determine his appeal in his absence, and that he should submit to the Board a written explanation of his failure to attend the hearing within 7 days.  The letter was not returned to the Board undelivered, and the Board did not receive any written explanation or documentary evidence from the applicant for his failure to attend the hearing[5]. The Board therefore proceeded to consider the appeal in his absence on the material before it.

7.By a decision dated 2 February 2018, the Board rejected the appeal/ petition confirming the Director’s decisions.  The Board’s decision covered all applicable grounds.

8.The Board gave detailed reasons for rejecting the applicant’s claim at paragraphs [20-59] of its decision.  In a nutshell, the Board noted major discrepancies in the claims of the applicant and found that his evidence in core issues was not credible.  Moreover, during the immigration examination when he arrived at Hong Kong airport, he only said he came to Hong Kong for sightseeing.  It was only after he was refused entry that he sought non-refoulement protection.  The Board found that the applicant was not a genuine protection seeker and dismissed his appeal [29].  The Board further stated that even if the information provided by the applicant were true, it would still dismiss his claim as the claimed risk of harm is unlikely to materialize [33]; and in any event, state protection and internal relocation are available to the applicant which would lower or negate the risk [34, 37]. 

9.Accordingly, the Board dismissed the applicant’s appeal on all applicable grounds.

Application for leave to apply for judicial review

10.The applicant filed a Form 86 on 29 June 2018 for leave to apply for judicial review of the decision of the Board.

11.No request for oral hearing has been made.  The application is therefore considered on the papers.

12.In the Form 86 the applicant did not set out any grounds for the relief sought.

13.In his supporting affirmation, the applicant stated that he was not satisfied with the decision of the Board and that his life is still in danger back in his home country.

Discussion

14.The relevant principles regarding non-refoulement claims 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, country of origin information, 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.

15.When the applicant pursued the appeal to the Board, the Director’s decisions were superseded by the Board’s decision and are no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore, while the court will nevertheless examine the decisions of the Director, it is unnecessary to delve into the decisions of the Director.  This decision will only focus on discussing the Board’s decision.

Application out of time

16.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 will 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: Re Thomas Lai [2014] 6 HKC 1; AW v Director of Immigration [2016] 2 HKC 393.

17.The principles have been further explained by the Court of Final Appeal in the recent case of H v Director of Immigration and AH v Director of Immigration FACV 1 and 2 of 2020, at para 37.  

18.In this case, even just counting from the 3-month time limit which ended on 2 May 2018, the application was late by almost 2 months. The delay was substantial.  The applicant did not request extension of time or give explanation for the delay.  I cannot find any good reason for the undue delay.

Merits of the intended application

19.Nevertheless, I will also consider the merits of the intended judicial review.  Far from a case with realistic prospect of success, I am of the view that the applicant has no prospect of success at all.

20.In the present case, the Board in fact rejected the applicant’s appeal/ petition on the ground that it disbelieved the applicant and found him not a genuine protection seeker.  On the factual findings, there would be no factual basis in support of any of the applicable grounds.  Moreover, even if his claimed facts were accepted by the Board, it would still dismiss his appeal as the Board assessed that the feared risk of harm would unlikely to materialize and state protection and internal relocation are available to him.

21.As explained above, the assessments 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 their decisions unless there is a public law ground for the court to do so.

22.The Form 86 and supporting affirmation contained nothing to demonstrate why the Board was unfair or unreasonable in the public law sense.  The repetition of claim that his life would be in danger back in his own country cannot constitute a valid ground of review.

23.The applicant failed to attend the hearing scheduled for him by the Board and failed to give explanation for his absence.  It is reasonable for the Board to proceed to consider the appeal on the materials before it in the absence of the applicant.

24.The court also agrees with the Board that the applicant’s initial answer in immigration clearance examination at the airport that he came to Hong Kong for sightseeing was inconsistent with someone in genuine fear for one’s life and safety who came to Hong Kong for non-refoulement protection.  It could be taken into account as damaging the applicant’s credibility and adversely affected the credibility of the claim.

25.Further, even if one were to accept the claimed account of events, the alleged past ill-treatment or experience were of low intensity and frequency demonstrating at the most a remote and unreal risk of future harm.  It came nowhere near the level of severity required by law for the claimed protection.

26.The evidence can hardly establish that there are substantial grounds for believing that the applicant would face a real risk of being subjected to any type of serious or proscribed harm, if refouled.

27.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 their decisions.  Nor do I see any failure on their part to apply high standards of fairness.

28.For the reasons given, there is no prospect of success in the applicant’s intended application for judicial review.

Disposition

29.There is no good reason for extending the time for the leave application, nor is there any merit in the intended judicial review.  I refuse to grant time extension and dismiss the application for leave to apply for judicial review.

Dated 23 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

Form CALL-1