Kumar Vinod v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 763/2019

[2021] HKCFI 3444

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 763 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 granted.

Observations for the Applicant:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Decision dated 28 February 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 is 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 sought to enter Hong Kong twice on 12 and 17 July 2015 and was refused permission to land. On 20 July 2015, he again sought to enter Hong Kong via Macau Ferry Terminal and was refused permission to land.  On the same date, he lodged a non-refoulement claim. 

5.The applicant claimed that, if refouled, he would be harmed or killed by Jasbir Deswal (“JD”) and his associates as he refused to join Bharatiya Janata Party (“BJP”).  He also feared that the Indian police sought to frame him up for a fake alcohol case.  According to the applicant, he was a supporter of Indian National Lok Dal (“INLD”).  He was a fairly active member for promoting the INLD.  In August 2014, JD and his followers required the applicant to join BJP but he refused.  He was verbally threatened three times.  In October 2014, JD won the election and INLD became less influential. At the same time, the applicant was attacked by BJP members and sustained multiple injuries.  When he and his father reported the incident to the police, the police simply dismissed them without investigation.  The applicant then relocated to Karnal and Panipat.  In Panipat, he was again attacked by the gangsters and suffered injuries.  Further, in June 2015, he was told by his father that JD lodged a false complaint with the police against him.  Out of fear, he fled to Hong Kong for protection.  Details of his story are set out in paragraph 6 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 9 September 2015 (“the Director’s Decision”), the Director refused his claim on Torture risk, BOR3 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 JD and his followers upon refoulement was assessed to be low [16]-[18]; that state protection was available to him [19]-[22] and that internal relocation was an option open to him [23]-[27].  In a Notice of Further Decision dated 3 April 2017 (“the Director’s Further Decision”), the Director also rejected his claim on BOR2 risk. 

The Board’s Decision

8.The applicant filed his notice of appeal/petition to the Board on 1 June 2017, which was late by more than one month from the date of the Director’s Further Decision. 

9.Guided by the relevant authorities, the Board considered whether to exercise its discretion to allow the applicant’s late filing.  It found that the applicant’s delay was serious and significant [17] and refused to accept the applicant’s explanation of delay which lacked documentary support [18]-[19].  The Board found that it could be conclusively presumed that the applicant had been served with the Director’s Further Decision as it was posted to his last known address [21].  Further, after evaluating all the circumstances, the Board found that the late filing of the applicant’s notice of appeal/petition could be justly rejected [22]-[24]. 

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 affirmation in support of his application, the applicant 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.  The Court of Final Appeal in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 held at §§43-45:

“43. The question in this appeal concerns the standards of fairness that must be observed by the Secretary in determining in accordance with the policy the potential deportee’s claim that he would be subjected to torture if returned to the country concerned. One is concerned with procedural fairness and there is of course no universal set of standards which are applicable to all situations. What are the appropriate standards of fairness depends on an examination of all aspects relating to the decision in question, including its context and its nature and subject matter: R v Home Secretary, Ex parte Doody [1994] 1 AC 531 at 560 D-G.

44. Here, the context is the exercise of the power to deport. The determination of the potential deportee’s torture claim by the Secretary in accordance with the policy is plainly one of momentous importance to the individual concerned. To him, life and limb are in jeopardy and his fundamental human right not to be subjected to torture is involved. Accordingly, high standards of fairness must be demanded in the making of such a determination.

45. It is for the Secretary to make such a determination.  The courts should not usurp that official’s responsibility.  But having regard to the gravity of what is at stake, the courts will on judicial review subject the Secretary’s determination to rigorous examination and anxious scrutiny to ensure that the required high standards of fairness have been met.  R v Home Secretary, Ex parte Bugdaycay [1987] 1 AC 514 at 531 E-G.  If the courts decide that they have not been met, the determination will be held to have been made unlawfully.”

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 acceptable. 

16.The Board relied upon the legal principles in the UK authority The Secretary of State for the Home Department v Begum [2016] EWCA Civ 122 (03 March 2016), which placed emphasis on the expeditious disposal of the proceedings, the overriding principle under the CPR of the UK. 

17.There are two observations in relation to the legal principles:

i.  CPR rule 3.9 of the UK practice does not apply in Hong Kong.  CPR and Civil Justice Reform in Hong Kong are not identical, at least on the objectives, one being overriding and the other underlying.  More importantly, Order 1A, rule 2(2) of the RHC provides:

“In giving effect to the underlying objectives of these rules, the Court shall always recognize that the primary aim in exercising the powers of the Court is to secure the just resolution of disputes in accordance with the substantive rights of the parties.”

ii.  the Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019 held:

“17.  Where a notice of appeal is filed out of time, s.  37ZT(2) mandates the Board to decide as a preliminary decision without a hearing whether it allows the late filing of the notice of appeal, and in doing so, to take account of “any other relevant matters of fact within the knowledge of the Board” apart from the explanation for the delay. 

18.  where there is a serious or significant breach for which no good reason is given, the decision maker moves to evaluate all the circumstances of the case with a view to dealing justly with the application. 

…

20.  …it was incumbent upon the Board, in exercise of its discretion to extend time for appeal, to take the merits of the applicant’s case into account regardless of the procedural breaches or the lack of explanation therefor.”

18.By “the merits of the applicant’s case”, the Court of Appeal is obviously referring to the facts as alleged by the applicant in support of his claim and the circumstances relating to his claim.  All of these are in the Director’s Decisions, which should have been given to the Board by the Director under section 9(1)(a) of Schedule 1A of the Ordinance:

Director to provide facts

(1)  The Director must, as soon as practicable after receiving a copy of a notice of appeal served under section 8 of this Schedule, provide to the Appeal Board and the person who has lodged the appeal—

(a)  if the decision being appealed against is a decision under section 37ZI(1)(b) rejecting a torture claim—

(i)  a copy of the completed torture claim form relating to the torture claim in respect of which the decision was made; and

(ii)  a copy of the written record of any interview of the claimant conducted by an immigration officer in considering the torture claim; …”

19.The Board confirmed that it had considered all the circumstances of the case before making its decision of refusing extension of time for the applicant to file his Notice of Appeal.  The Court of Appeal in Khan Kamal Ahmed’s case has extended the circumstances to cover the merits of the case, which refer to the Director’s Decisions.  According to the Court of Appeal’s decision, the Board is bound to consider the Director’s Decisions before deciding whether it is just to refuse extension of time for the applicant to file his Notice of Appeal.

20.I find that the applicant has a realistic prospect of success in his application as there is no indication in the Board’s Decision that the Board had considered the merits of the applicant’s case.  Although the Court of Appeal’s decision precedes the Board’s Decision, in my view, since the decision bears on the law, it applies to the Board’s Decision as well, which means the Board should have taken this approach without the Court of Appeal’s decision.

CONCLUSION

21.I therefore grant leave for the applicant to apply for his intended judicial review.  The applicant has to take out the originating summons within 14 days after the grant of the leave in accordance with Order 53, rule 5 of the RHC.

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