Jaspal Masih v. Torture Claims Appeal Board

HCAL 2574/2018

[2021] HKCFI 2580

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2574 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 45-year-old national of India who arrived in Hong Kong on 14 July 2015, and 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 the family of the girlfriend of his close friend for helping them to elope. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Mukaam, District Amritsar, Punjab, India. After leaving school he worked as a construction worker, married his wife and raised a family with children in his home district.

3.One day in late 2014 the Applicant was told by his good friend Rajbachan that he wanted to marry his girlfriend Katrina but their relationship was opposed by her family as her father had already arranged for her to marry another man, and hence they planned to elope and asked him to help them.

4.The Applicant agreed and so one day in March 2015 he together with another friend drove Rajbachan and Katrina to Amritsar where they boarded a train for Delhi, and had since not been heard again.

5.On the following day Katrina’s father who was an influential man in the village came to the Applicant’s home with some policemen and accused him of helping his daughter to elope and demanded to know where she had gone, and when the Applicant explained that he did not know, Katrina’s father was furious and threatened to kill him if his daughter could not be found.

6.One evening in April 2015 the Applicant was approached by some unknown men asking for the whereabouts of Katrina, and when he said he did not know, they attacked him with hockey sticks, and threatened to kill him next time if he still failed to disclose where Katrina was. 

7.A few days after the incident the Applicant was told to go to the local police station where he was accused of having kidnapped Katrina and was detailed for interrogation during which he was beaten until his family paid bribes to the police when he was eventually released without charge.

8.Thereafter the Applicant fled to Chandigarh to take shelter in a friend’s place and worked in a hotel, but one day Katrina’s elder brother together with some men appeared and confronted him for Katrina’s whereabouts, and proceeded to beat him with hockey sticks, and before they left, Katrina’s brother pointed a pistol at the Applicant and threatened to kill him next time if he still failed to disclose Katrina’s whereabouts.

9.After the assault the Applicant fled to Delhi, and on 14 July 2015 he departed India for 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 15 August 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). 

10.By a Notice of Decision dated 22 September 2015 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then 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”).

11.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from Katrina’s family upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that it was a private dispute between them without any 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”) show 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 2.9 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of India away from his home district in large cities such as Delhi where it would be difficult if not impossible for Katrina’s family to locate him.

12.On 8 October 2015 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 8 December 2015 before the Board during which he gave oral evidence and answered questions raised of his claim by the Adjudicator for the Board. On 8 January 2016 his appeal was dismissed by the Board which also confirmed the Director’s decision.  

13.In its decision the Board found inconsistencies, discrepancies and contradictions in the Applicant’s evidence for his claim between those given earlier to the Director and to the Board that they seriously damaged the general credibility of his claim that it concluded that he had failed to establish that he would face any risk of harm if refouled to India and that his claim for non-refoulement protection failed on all applicable grounds.

14.Meanwhile on 26 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 15 February 2017 rejected the Applicant’s BOR 2 Claim upon finding that he had failed to establish a person and real risk of his absolute and non-derogable rights under the HKBOR including right to life under BOR 2 being violated upon his return to India.

15.On 24 April 2017 the Applicant again lodged an appeal to the Board against this further decision of the Director, but as his Notice of Appeal was found to be filed outside the 14-day period required by Section 37ZS(1) of the Immigration Ordinance, for which he explained in section 5 of his Notice of Appeal that his English is weak and had had to seek help from a friend, while in section 2 for the grounds of appeal the Applicant merely repeated his claim of fear of harm from Katrina’s family if refouled to India.

16.In pursuance of 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.

17.By a written notice dated 5 November 2018 the Board refused to allow the late filing of the Applicant’s Notice of Appeal upon finding that it had been late by almost 8 weeks, that it was a serious delay for which the Applicant failed to provide any good or satisfactory explanation, that there was no merit in his intended appeal as disclosed in his grounds of appeal, and that there was nothing in the facts relied on by the Applicant which might amount to special circumstances that would make it unjust not to allow the late filing of his Notice of Appeal. 

18.On 16 November 2018 the Applicant filed his Form 86 for leave to apply for judicial review of this second decision of the Board in refusing to allow the late filing of his Notice of Appeal, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely stated that he is not satisfied with the decision as his life is still in danger in his home country and that he cannot go back at this moment but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application. As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

19.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

20.In the Applicant’s case, the Board refused to allow the late filing of his Notice of Appeal for the thorough and detailed analysis and reasoning set out in paragraphs 14 – 20 of its decision, that there was in my judgment no error in its finding the Applicant’s stated reason that his English is weak and had had to seek help from a friend of not a good reason for his serious delay, and that it had also properly taken account of all other relevant matters of fact including the merits of his appeal as required under Section 37ZT(2)(b) of the Ordinance before arriving at its conclusion that there was no special circumstances to make it unjust not to allow the late filing of his Notice of Appeal, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.  

21.The fact is that it has been established by the Director in his earlier decision that the risk of harm in the Applicant’s claim if true is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, a decision also confirmed by the Board’s first decision, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526. 

22.In the premises and having considered this decision of the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in it, nor any failure on its part to apply high standards of fairness in its determination and decision in refusing to allow the late filing of the Applicant’s Notice of Appeal.

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

Dated the 2^nd day of September 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