Case Document

100%Judiciary

HCAL 2249/2018

[2021] HKCFI 1068

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2249 of 2018

BETWEEN

	AVTAR 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 the documents only; or

consideration of the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge To:

Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.The Applicant is an Indian national from Punjab. He is now 30 years old. He arrived in Hong Kong on 9 February 2012 as a visitor. He became an illegal over-stayer since 24 February 2012. He was arrested by the police on 9 May 2012. Two days later, he lodged a torture claim, which has since been expanded to include non-refoulement protection on three applicable grounds, namely:

(1) risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Articles 1 and 3 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Torture Risk”);

(2) risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 Risk”); and

(3) risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“Persecution Risk”).

He had twice withdrawn his claim, but twice requested for re-opening. In connection with his claim, he attended a screening interview in the Immigration Department on 16 October 2015 (the “Screening Interview”). He was then arrested for the offence of Possession of an Identity Card relating to another person for which he was sentenced to prison.

2.By a Notice of Decision dated 27 November 2015 (the “2015 Notice”), the Director of Immigration (the “Director”) rejected his torture claim. Then, he filed his appeal to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”) on 10 December 2015. It was only until 14 September 2016 that the appeal was heard by the Board. On 25 May 2017, the Board dismissed his appeal (the “Decision”).

3.In the meantime, the non-refoulement protection had been extended to a further applicable ground, ieany other absolute and non-derogable rights under Article 2 of Section 8 of Hong Kong Bill of Rights Ordinance, including the right to life (“BOR 2” and “BOR 2 risk”). On 29 May 2017, which was four days after the Decision of the Board was issued, the Director wrote to the Applicant inviting him to submit additional facts in support of his non-refoulement claim on this additional groundon or before 12 June 2017. The Director also advised him that a further written decision of his non-refoulement claims on any other applicable grounds, taking into account any new facts submitted and all facts submitted previously under the unified screening mechanism (“USM”), will be made if he has not produced any relevant facts to him by that date.”

4.The Applicant did not respond. Having further considered the Applicant’s claims under BOR 2 risk ground on the basis of the information hitherto submitted by the Applicant, the Director rejected his application for non-refoulement protection. By a Notice of Further Decision dated 13 June 2017, the Director informed the Applicant of his decision (the “2017 Notice”). The Director specifically drew the Applicant’s attention to the fact that if he is aggrieved by this further decision, he may lodge a further petition to the Non-refoulement Claims Petition Office within 14 days from the date of the 2017 Notice. The Director also advised him of the address of the Non-refoulement Claims Petition Office and enclosed a copy of the petition form with the letter. The Applicant did not appeal. Thus, insofar as the 2017 Notice is concerned, the decision of the Director is final.

5.On 16 October 2018, the Applicant applied for judicial review of the 2015 Notice of the Director, the Decision of the Board and the Record of the Screening Interview. The Decision of the Board is reviewable by judicial process but not the decision of the Director in the 2015 Notice or 2017 Notice because there are established procedures of appeal to the Board and the Applicant has invoked those procedures. The Director’s decisions in the two Notices were superseded by the Board’s Decision and are no longer susceptible to judicial review: Re Moshsin Ali[1]. The Record of the Screening Interview which is not a decision of an administrative body but a record of what the Applicant was asked and his reply is also not susceptible to judicial review. Insofar as the application for leave to apply for judicial review of the Decision is concerned, the application is almost 14 months’ out of time. In the interest of justice and good case management, the Court considered whether there are good reasons in support of an application for extension of time to apply for leave to apply for judicial review of the Decision of the Board. If there are good reasons for the delay and merit in the application to apply for judicial review, the Court would grant extension of time, dispose of the application for leave and treat the complaints against the Director as directed at the Board also.

6.On 16 October 2018, the Applicant applied for judicial review of the 2015 Notice of the Director, the Decision of the Board and the Record of the Screening Interview. The Decision of the Board is reviewable by judicial process but not the decision of the Director in the 2015 Notice or 2017 Notice because there is an established system of appeal to the Board nor is the Record of the Screening Interview which is not a decision but a record of what the Applicant was asked and his reply. Insofar as the application for leave to apply for judicial review of the Decision is concerned, the application is almost 14 months’ out of time. In the interest of justice and good case management, the Court treated the application as an application for extension of time to apply for leave to apply for judicial review of the Decision of the Board and the complaints against the Director as directed at the Board also. If there are good reasons for the delay and merit in the application to apply for judicial review, the Court would grant extension of time and dispose of the application for leave.

Length of the delay and explanation

7.The Applicant filed a well written and typed affirmation of ten pages in support of his application. He apologised profusely for his late application. He said he changed his address and has informed the Immigration Department immediately. He was not aware that he should also inform the Board of the change. He said he was only informed by the Immigration Department on his regular reporting that his appeal had been dismissed by the Board. He put the blame on lack of language assistance or translation of the Notice of Appeal. Presumably, by that he meant lack of instruction by the Board in Punjabi about the need to inform the Board of his change of address.

8.Not only was his explanation a lame excuse, it was false. According to the information provided by the Immigration Department, the Applicant’s last reported address is 232 Yu Chau Street. He never reported his change of address, if there was any change. When confronted with this information, he reluctantly admitted he had not reported his change of address. As was held in Re Karamjit Singh[2], it is the duty of a litigant/claimant to give the authority an address to which correspondence or notice can come to his attention in a timely manner. The consequence of any delay occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant/claimant: see Islam Raja Rais v Director of Immigration[3], Said Umair v Torture Claims Appeal Board[4] and Re Saqlain Muhammad[5].

9.The length of delay is nearly 14 months. The Applicant has no explanation for the delay. It was an inordinate delay. For this reason alone, his application may be refused. However, the Court took a step further to consider the merit of his application.

The Applicant’s case

10.The Applicant was brought up in Village Mund Khera, District Patiala in Punjab. He received education up to Class 10.

11.The Applicant is a member of the Congress Party. In 2011, he helped his father attend rallies and putting up posters during a campaign for the 2012 election. In October/November 2011, 4 members of the opponent Akali Dal Party (“ADP”) asked him to switch allegiance to the ADP. He and his father refused. Ten or fifteen days later, they came and asked him to join. He refused. On these two occasions, nothing happened. No violence followed.

12.Ten to twelve days later, the same four ADP members asked him to join. On his refusal, they assaulted him with hockey sticks, causing bruises and bleeding in the right foot.

13.A month later, in January 2012, his father was killed.

14.The Applicant never reported any of these incidents to the police because he had to pay a bribe to seek the police assistance. He thought the police would not help him as the state government was led by the ADP. He was afraid and moved to Chandigarh City where he spent a week with his uncle. Then he followed his uncle to Thailand and then he flew to Hong Kong to seek protection.

The finding of the Board

15.The Board was not satisfied with Applicant’s evidence. The Board considered the evidence vague and lacking in particulars to support his claims. It also considered the appeal failed independently for lack of credibility.

16.Specifically, in respect of the torture risk, the Board held that two of the four elements necessary to establish the claim are not proven. First, even accepting the Applicant’s evidence that he had been assaulted, there was no evidence of instigation or authorisation by the national government nor was there evidence of passive acquiescence. Second, there was no evidence of severe pain and physical or mental suffering reaching the minimum level of severity on the duration of treatment, its physical or mental effects.

17.In respect of BOR 3 Risk, the Board found the Applicant had not suffered any severe injury or serious harm within the criteria of cruel, inhuman, degrading treatment or punishment; that he will face a future risk of serious harm; and in any event, he could avoid the risk by internal relocation.

18.In respect of Persecution Risk, the Board was not satisfied that the Applicant had suffered severe injury or serious harm which would place him within the criteria of persecution; that he will face a future risk of serious harm; and in any event, he could avoid the risk by internal relocation.

19.The Board had considered extensive Country of Origin Information (“COI”) from credible sources and was satisfied that state protection is available and internal relocation is a viable option to avoid the risk.

The applicable legal principle for judicial review

20.The role of the court in judicial review is not to re-assess the non-refoulement claim afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[6].

Grounds for judicial review

21.The Applicant’s grounds for leave to apply for judicial review may be summarized as follow:

(1) the Director and the Board erred in their finding of fact in the 2015 Notice and the Decision respectively; both decisions are Wednesbury unreasonable;

(2) he was not provided with legal representation after the Screening Interview;

(3) it was procedurally unfair that he was not aware of any decision being issued;

(4) he was not given language assistance: the Decision of the Board was never read or translated to him and no one explained the decision to him and he had to rely on his friends for interpretation;

(5) the Director cherry-picked the COI for the purpose of defeating his claim; and

(6) the Director showed an unfair attitude and failed to attain the high standard of fairness required by the Wednesbury test.

The Court considered it convenient to deal with the first and last grounds last.

Grounds (2), (3) and (4): procedural unfairness, lack of legal and language assistance

22.These three grounds can be conveniently dealt with together. In Re Zafar Muazam[7], Re Zunariyah[8], Re Zahid Abbas[9], Re Tariq Farhan[10], and Re Lopchan Subash[11], the Court of Appeal held that neither the high standard of fairness laid down in Sakthevel Prabakar v. Secretary for Security[12] nor the judgment of FB v. Director of Immigration[13] prescribes that a CAT claimant or a claimant of BOR 2 or BOR 3 or persecution risks has an absolute right to free legal representation at all stages of the proceedings. The Applicant had the benefit of the services of a qualified interpreter and legal representation by the Duty Lawyer Service in presenting his case to the Director at the Screening Interview. He also had the services of a qualified interpreter at the oral hearing before the Board. Nothing amiss arose from the non-availability of legal representation before the Board.

23.The Applicant complained that it was procedurally unfair that he was not aware of the Decision having been issued until he reported to the Immigration Department. It is his one sided assertion only as the Board had not been invited to respond. As this Court has noticed, in the normal course of event had the appellant provided a correct address to the Board, the Board would inform him the outcome of his appeal by mail to his given address. Even accepting his allegation at its face value, he has not shown any procedural unfairness. He was informed of the outcome of his appeal in time for him to pursue his claim by further legal proceedings, namely to apply for leave to apply for judicial review. He has suffered no adversity. He was not deported and continued to remain in Hong Kong.

24.As for his complaint that the Decision has not been explained or translated to him, this has no bearing on the correctness or otherwise of the Decision, which was made after he had his chance to be heard and when he had the services of a qualified interpreter in presenting his appeal.

25.Insofar as the further pursue of his claim by way of judicial review is concerned, he knew and he accepted that interpretation is a luxury not available in Hong Kong and a luxury he is not entitled to. In any event, he had, according to his affirmation, at least been explained the outcome of his appeal when he reported at the Immigration Department. He had his own access to interpretation services from among his own circle. He knew the reasons for the Decision and was able to prepare a well written affirmation in English in support of his application. In any event, even if not, when he appeared before this Court, the Court would enquire, as it did, from him his grounds of application and he would, as he did, have the services of a qualified interpreter. The Court will maintain a high standard of fairness. The Court will be inconvenienced in doing so, but the Applicant’s interest will not be compromised. There is no substance in these grounds of application.

Ground (5): Cherry picking COI

26.In essence, the Applicant complained that the Board or the Director erred in not giving more weight to the COI in support of his allegation of police corruption, susceptibility of police to political influence, unavailability of state protection, ineffectiveness of internal relocation, etc. The weight to be attached to any piece of evidence is a matter for the tribunal of fact, ie the Board. It has to be assessed on the totality of the evidence. Unless it can be shown that no reasonable tribunal would have made such a finding, the Court will not intervene.

27.The Board referred to 15 items of COI, including Country Reports on Human Rights Practices – India published by the United States Department of State. The report speaks, inter alia, on the role of the police and security apparatus, arrest procedures and treatment of detainees, trial procedures, and respect for civil liberties. They provide information about police corruption and government’s effort in combating the problem; availability of avenues for complaint; arrests of senior government officials for corruption etc. There are also COI issued by the Indian Government, including First Information Report issued by the Indian Ministry of Home Affairs; 181 Punjab Police Non-Emergency & Grievances Redressal Platform; and Your Guide To Using the Police Complaints Authority. These publications inform citizens how to lodge complaints to the police and illustrates the aspects of human rights. There are 7 items of COI about internal relocation, including Country of Origin Information and Guidance – India: published by the United Kingdom Border Agency. They provide background information and information about internal relocation.

28.These COI are published by credible and authoritative organisations. The Board had referred to these COI. As commented by the Board, in the face of these COI, the Applicant chose to remain silent at the oral hearing and the Board did not hear his comments.

29.These are finding of facts by the Board. There is nothing to suggest that the Board erred in law or was guilty of procedural unfairness or was unreasonable in coming to its finding that state protection and internal relocation are available to deal with or avoid the risks and fears. This ground for review therefore fails.

Grounds (1) and (6)

30.Under the first ground, the Applicant complains that the Board’s Decision was Wednesbury unreasonable. Under sixth ground, he complains that the Decision is unfair. But he gave no particulars. The best approach would be to bear these complaints in mind while assessing his other grounds and then in the end after having regard to the totality of the evidence, come to a view if the Board’s Decision was indeed Wednesbury unreasonable and unfair. Having considered the other four grounds and the totality of the evidence, this court is unable to come to any view that the Decision was Wednesbury unreasonable and unfair.

Merits of the substantive application

31.The function of the court in judicial review is not to re-assess the non-refoulement claim afresh. This Court will only scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. The Court had scrutinised the Decision, the 2015 Notice and 2017 Notice (though it was not necessary to do so), all the documents, the Applicant’s submissions and the COI. It is the opinion of the Court that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM. The Board concluded that there was no factual basis to support the Applicant’s claim for non-refoulement protection under any of the four applicable grounds. The Board’s Decision was utterly without fault. There were no errors of law, procedural unfairness or irrationality in its Decision. Therefore, the Court concluded that there are no merits in the substantive application.

Prejudice

32.In summary, the delay of nearly 14 months in making this application is inordinate and by any standard undue. The Applicant could offer no credible valid explanation for the delay. In fact, he offered a fake reason. If a challenge is allowed to proceed so grossly out of time, it would cause prejudice to the public administration. The delay is by itself an abuse of the process of the court and the non-refoulement protection arrangement. To allow the challenge to proceed would encourage other claimants to indulge in such abuse. It would cause unnecessary waste of judicial and public resources and delay the genuine non-refoulement claimants’ access to the court. It would render it difficult for the Director to perform his duty of maintaining immigration control. Above all, it would make it difficult or unduly burdensome for Hong Kong to honour its international obligations under various conventions to protect people from persecution, torture and other cruel, inhuman or degrading treatment or punishment. This application does not raise any questions of general public importance.

Disposition

33.The application was out of time by nearly 14 months. The delay was grossly inordinate. The Applicant has no explanation for such undue delay. In fact, he offered a false reason. On this ground alone, the application may be refused. However, the Court went further to explore the merits of the substantive application, but found there is none. The Court was satisfied that there was no error of law, procedural unfairness or irrationality in the Decision of the Board. Indeed, the Board adhered to a high standard of fairness. The Board’s Decision was not Wednesbury unreasonable. To allow the challenge to proceed despite such an inordinate and unexplained delay would create serious prejudice to the proposed Respondent and the administration. The application for leave to apply for judicial review was made out of time and there is no prospect that an application for extension of time will be allowed. Accordingly, the Court refused the application for leave to apply for judicial review.

Dated the 21^st day of April 2021.

	(Sammi Wu)
	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 his 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 21 April 2021 Avtar 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 21 April 2021 Torture Claims Appeal Board / Non-Refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 2742/15/12/71/IN608 Director of Immigration Putative Interested Party’s ref. no.: ImmD RLS1/12/2094/2015 Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)