Piyara Masih v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 762/2019

[2021] HKCFI 3443

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 762 of 2019

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Application for Leave to Apply for Judicial Review

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

Following;

	consideration of documents only; or
	consideration of documents and Applicant being absent 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.This is the applicant’s application for leave to apply for judicial review of the Decision dated 14 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”). 

2.The applicant did not ask for a hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), his application will be dealt with 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.

The applicant

4.The applicant is a citizen of India.  He came to Hong Kong on 30 December 2013 and was refused permission to land.  He lodged a torture claim on 3 January 2014.  By a letter dated 6 January 2014, he wrote to withdraw his torture claim and lodged a claim on cruel, inhuman, or degrading treatment or punishment (“CIDTP”).  Upon the commencement of the unified screening mechanism, his CIDTP claim was assessed on all applicable grounds. 

5.The applicant claimed that, if refouled, he would be harmed or killed by the Skih leaders as he refused to convert back to Sikh after he became a Christian.  According to the applicant, he was born in a Sikh family.  Their religion prohibited him from changing their religious belief.  In around October or November 2011, the applicant followed his father to a Christian church to pray for his younger sister.  Upon learning the principles of Christianity, his family started to believe in this religion and, when his younger sister recovered, they converted to Christian.  This act irritated the Skih leaders who attacked his father two times and injured his father.  In June 2012, they killed the applicant’s father.  Out of fear, he eventually fled to Hong Kong for protection.  Details of his story are set out in paragraph 12 of the Director’s Decision as described below.

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”); and

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 16 March 2015 (“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 him being harmed or killed by the Sikh leaders upon refoulement was assessed to be low [21]-[22]; that state protection was available to him [23] and that internal relocation was an option open to him [24].  In the Notice of Further Decision dated 18 November 2016 (“the Director’s Further Decision”), the Director also refused his claim on BOR2 risk. 

The Board’s Decision

8.The applicant lodged a petition to the Non-Refoulement Claims Petition Office against the Director’s Further Decision on 25 January 2017.  He was late by around two months. 

9.Guided by the relevant legal principles, the Board considered whether there was special circumstance to exercise its discretion to allow the applicant’s late filing.  It assessed the applicant’s explanation as to the delay as stated at [16] of the Board’s Decision.  The Board found that the applicant was notified by the Director’s Further Decision and that his reason for not receiving the decision was unacceptable [21].  It also found that the applicant constantly missed the interviews and he only made the claim on BOR2 risk when he was apprehended.  He did not appeal the Director’s Decision.  All these considered, the Board was of the view that the applicant had little interest in pursuing his non-refoulement claim which was inconsistent with someone who genuinely feared harm if refouled [23].  In any event, the Board considered the applicant’s non-refoulement claim.  It found that it was not strong enough for the Board to exercise discretion to allow the late filing and there were no other special circumstances warranting the Board’s exercise of discretion in his favor [24].  As a result, the Board refused to allow the applicant’s late filing of the notice of appeal/petition.

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 19 March 2019 for leave to apply for judicial review of the Board’s Decision.  This application is on the Board’s Decision refusing to extend time for him to file his Notice of Appeal, effectively, dismissing his appeal.

11.In his affidavit in support of his application, he said that he rejected the decision made by the Immigration Department because they disregarded his dangerous situation.  By this expression, I shall take it that he is referring to the Board’s Decision only.

DISCUSSION

12.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal.  The Court will not usurp the fact finding power vested in the Director and the Board.  See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, CA.  §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

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

14.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …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.”

15.It is within the Board’s power to find that the applicant’s appeal was late and that his explanations for the delay were not persuasive. 

16.The Board had taken into account of the requirement of considering the merits of the applicant’s case under the guidance of the Court of Appeal in Karamjit Singh [2018] HKCA 460 and the manner in which the assessment of the merits of the case should be conducted as held by the court in Satbinder Singh v Wesley Wong & Ors HCAL 133/2015.  It is apparent that the Board had considered the Director’s Decision and the Director’s Further Decision before it said in paragraph 24: ‘… I consider that the merits of his non-refoulement claim are insufficient to weigh in favour of the discretion to allow the late filing.  There are no other matters known to the Board or revealed by the factual basis of the Petitioner’s claim.’

17.The applicant has submitted no valid ground to assist his application.  The Board has, in fact, considered the merit of his case, which it found to have no merit at all.  The Board is justified to refuse extension of time for the late filing of the applicant’s Notice of Appeal.

18.The Court does not find any error of law or procedural unfairness in the Board’s Decision.  The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

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

CONCLUSION

20.I therefore refuse to grant leave for the applicant to apply for his intended judicial review.  Accordingly, I dismiss his application.

Dated the 22^nd day of November 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