Salim v. Torture Claims Appeal Board

HCAL 1470/2018

[2021] HKCFI 1199

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1470 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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 27-year-old national of India who last arrived in Hong Kong on 15 September 2014, but when he was refused entry by the Immigration Department, he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by certain local supporters of the rival political party Shiromani Akali Dal (“SAD”). He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Dalla, Bholah, District Kapurthala, Punjab, India. After leaving school he did not work and remained living with his parents and relying on them for his living, and became a supporter of the political party Indian National Congress (“INC”) regularly and attended their local meetings and rallies.

3.One day in February 2014 while the Applicant was discussing with his fellow INC supporters about the forthcoming general parliamentary election, they were attacked by a group of SAD supporters led by Satpal, the elected head of the village with wooden sticks, but the Applicant managed to flee from the scene without serious injuries.

4.Afterwards the Applicant reported the incident to the local police, but it appeared that they were not keen to launch any investigation, and then he started to receive threatening phone calls from Satpal, then one day in June 2014 he was forcefully taken by Satpal and his followers to a house where he was beaten and tortured until he fainted and was later taken to the hospital for treatment.   

5.After his discharge from the hospital, as he was still fearful for his life, the Applicant therefore departed India on 22 August 2014 for China, and from there he travelled to Macau and then Hong Kong, and when he was refused entry by the Immigration Department, he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 14 October 2014 and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

6.By a Notice of Decision dated 20 November 2014 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Ordinance”) (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

7.In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from Satpal or his men upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that given that he held no official post in INC that there is no reason why they would still have any adverse interest in him after all these years, that in the absence of any evidence of official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) shows that reasonable internal relocation alternatives are available in India with a large population of 1.2 billion people spread across a vast territory of more than 3.2 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied young man to move to other parts of India away from his home district in large cities such as Delhi where it would be difficult if not impossible for Satpal or his men to locate him.

8.On 1 December 2014 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 21 September 2015 before the Board during which he confirmed that he stood by the information in the hearing bundle but refused to answer any questions from the Board despite being invited to clarify or explain various queries raised of his claim. On 2 October 2015 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board found inconsistencies in the Applicant’s claim that in the absence of any further evidence or answers to queries raised of his claim from him during his appeal hearing and based on the information and materials available before the Board that there was no reliable evidence in support of his assertions of being ill-treated by Satpal or his men, that reliable COI did not support his claim that Satpal was during the material time the elected head of his home village, and that in the absence of any reliable evidence of any state or official involvement that state/police protection would be available to the Applicant if needed upon his return to India that his claim for non-refoulement protection failed on all then applicable grounds.        

10.On 4 January 2017 the Director on his own initiative invited the Applicant to submit any additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”), and in the absence of any response from him, the Director by a Notice of Further Decision dated 24 January 2017 rejected the Applicant’s claim under BOR 2 Risk upon finding that he has failed to establish any personal or real risk of his absolute and non-derogable rights under the HKBOR being violated including right to life under BOR 2 upon his return to India.

11.On 13 April 2017 the Applicant again lodged an appeal to the Board against this further decision of the Director, but on this occasion he was late with the filing of his notice of appeal as Section 37ZS of the Ordinance requires an appeal to the Board be filed within 14 days after notice of the decision is given, and as the last day of such period for the Applicant to do so fell on 9 February 2017, he was therefore more than 2 months late with his intended appeal.

12.Pursuant to Section 37ZT(2) of the Ordinance, the Board proceeded to decide as a preliminary decision without a hearing whether to allow the late filing of the Applicant’s notice of appeal, and on 18 July 2018 it refused his late filing of his appeal upon finding that his delay of more than 2 months was both serious and significant, that he had failed to establish any good or valid reason for such serious delay, and that there were no special circumstances that would make it unjust not to allow the late filing of his notice of appeal.

13.On 26 July 2018 the Applicant filed his Form 86 for leave to apply for judicial review of this second decision of the Board, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely attached a copy of the decision but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application.

14.Nevertheless, the court will adopt an enhanced standard in scrutinizing the Board’s decision in view of the seriousness of the issues at hand, of which I shall proceed to do regarding the Board’s reasons for refusing to allow the late filing of the Applicant’s notice of appeal.

15.In his statement of reason given in his notice of appeal for his late filing, the Applicant stated as follows:

“I (deletion) (countersigned Salim) Salim, my appeal got late because that I changed my house, due to which I received my letter late. I ask for forgiveness for this mistake. And kindly my appeal should be accepted.”

16.In the Board’s decision the Adjudicator took the widest approach in dealing with the Applicant’s late filing of his notice of appeal, and upon carefully examined her analysis and reasoning in §§18-24 of the decision, I do not find any error as to law or fact in her decision to refuse the late filing.

17.I am of course mindful of the decision of the Court of Appeal in Re Qasim [2019] HKCA 430, 8 April 2019 which held that the Board should take account the merits of the appeal to decide whether there are special circumstances that may make it unjust not to allow the late filing, of which the Adjudicator did not appear to have done so in the decision, but in his notice of appeal, the Applicant merely repeated his same claim of fear of harm from Satpal as the ground of his appeal, of which the Adjudicator had, as noted above, already in the Board’s first decision properly dealt with and rejected, correctly in my judgment, essentially on the adverse finding as to his credibility for the reasons set out in that decision together with the availability of state protection upon his return to India that his claim was found to have failed on those applicable grounds, and of which the Applicant has never sought to challenge by way of judicial review.

18.Accordingly, and given the fact that he also failed to respond to the Director’s subsequent invitation to submit any additional facts which may be relevant to his claim under BOR 2 Risk, and that even on the basis of his own case, there is simply no scope for finding in his favour on BOR 2 Risk when his claim under all the other applicable grounds had been duly rejected.       

19.In the premises and having also considered the earlier decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or irrationality or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

20.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review of the Board’s second decision, and I accordingly refuse his leave application.

Dated the 30^th day of April 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