Varinder Singh v. Torture Claims Appeal Board
Read the full judgment text of HCAL 2530/2018 on BabelCite. This High Court CFI judgment was delivered on 29 December 2021.
1. The Applicant is a 27-year-old national of India who arrived in Hong Kong on 21 March 2015 as a visitor, 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 the family of his former girlfriend who blamed him for her suicide after they had objected to their relationship and/or by the police after her family had made charges against him over her death. He was subsequently releas
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HCAL 2530/2018 [2021] HKCFI 3890 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2530 of 2018
Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge’s decision (Ord 53 r 3) Following:
Order by Deputy High Court Judge Bruno Chan:
Observations for the Applicant: 1.The Applicant is a 27-year-old national of India who arrived in Hong Kong on 21 March 2015 as a visitor, 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 the family of his former girlfriend who blamed him for her suicide after they had objected to their relationship and/or by the police after her family had made charges against him over her death. He was subsequently released on recognizance pending the determination of his claim. 2.The Applicant was born and raised in Village Hardo Putli, District Amritsar, Punjab, India. After receiving 5 years of schooling, he assisted his father in farming in his home village, and in late 2013 started to date his girlfriend who was the daughter of the village head who was also wealthy with political connections. 3.In about mid-2014 his relationship with his girlfriend was discovered by her family who however opposed to such in view of their different caste, and one day in June 2014 the Applicant was detained by the police at the instigation of his girlfriend’s father during which he was beaten with wooden sticks, and was only released on the third day at the plea of his father. 4.The Applicant however continued to meet his girlfriend, and one evening in September 2014 while he was on his way home, he was ambushed by his girlfriend’s elder brother and his followers who accused him of not heeding to her family’s demand to end their relationship, and proceeded to beat him with hockey sticks until they were intervened by other passers-by, and as a result the Applicant was taken to the hospital for treatments to his injuries. 5.Shortly after returning to his home, the Applicant heard that his girlfriend had committed suicide but her father had made false charges to the police that the Applicant was responsible for his daughter’s death, and that the police would soon be arresting him. On his family’s advice the Applicant therefore fled to Ajnala to hide in his uncle’s place, and on 17 February 2015 he departed India and subsequently arrived in 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 5 May 2015 and attended screening interviews before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). 6.By a Notice of Decision dated 6 July 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 (“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 of all the relevant circumstances of the Applicant’s claim and doubted the credibility of his claim given his confused time sequence of the events which he claimed to have driven him to leave his home country, that even if his claim were true that it is assessed that the level of risk of harm from his girlfriend’s family or the police upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that there is no reliable evidence that he was being wanted by the police prior to his departure, that in any event his dispute with his girlfriend’s family was a private personal matter 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 young adult with working experience to move to other part of India away from his home district in large cities such as New Delhi or Mumbai where it would be difficult if not impossible for his perceived enemies to locate him. 8.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but as his Notice of Appeal received by the Board on 22 July 2015 was deemed to have been filed outside the 14-day period required under Section 37ZS(1) of the Immigration Ordinance but without including any application for its late filing in section 5 of the Notice, and that it was also not signed or dated in section 6, it was therefore returned to the Applicant for completion, which he duly did and returned to the Board on 28 July 2015, and 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 his Notice of Appeal. 9.By a written decision dated 10 November 2015 the Board refused to allow the late filing of the Applicant’s Notice of Appeal upon finding that it had been 7 days late, that his explanation that he was given the decision by his lawyer only on 10 July 2015 was not supported by any documentary evidence and was not acceptable, and that there were no extenuating circumstances why the 14-day period for filing should not strictly be adhered to that the Applicant’s application for leave to file his appeal out of time was dismissed (“Board’s First Decision”). 10.Meanwhile on 24 January 2017 the Director on his own initiative in writing invited the Applicant to submit 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 also rejected the Applicant’s BOR 2 Claim upon finding that he failed to establish a personal and real risk of his absolute and non-derogable rights under HKBOR including right to life under BOR 2 being violated upon his return to the India. 11.On 10 April 2017 the Applicant again lodged an appeal to the Board against the Director’s Further Decision, and again his Notice of Appeal was found to have been filed outside the required 14-day period, and the Board therefore proceeded to decide as a preliminary decision without a hearing whether to allow the late filing of his Notice of Appeal. 12.By a written decision dated 26 October 2018 the Board again refused to allow the late filing of the Applicant’s Notice of Appeal upon finding that there had been more than one month undue delay, that his explanation was totally unintelligible, that there was no substance in his appeal, and that it was purely to prolong his time in Hong Kong (“Board’s Second Decision”). 13.On 12 November 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 stated that he is not satisfied with the decision as his life is not safe in his home country but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application. 14.Nevertheless, given the serious implications of not just this second decision of the Board but both of its decisions in refusing the late filing of the Applicant’s Notice of Appeal on both occasions thereby denying him of his right to the second tier of the enhanced screening process of his non-refoulement claim on all the applicable grounds, high standards of fairness require that both decisions of the Board be scrutinized by the court for any error of law, irrationality or procedural unfairness, starting appropriately first with the more recent second decision of the Board, in which the Adjudicator stated the following reasons for refusing the late filing of the Applicant’s Notice of Appeal regarding his BOR 2 claim:
15.While the Board in that last paragraph [18] stated that the Applicant’s appeal/petition is dismissed, it is clear from the substance of its decision that it refused to allow the late filing of the Applicant’s Notice of Appeal, and in doing so it did not and could not proceed to hear his appeal/petition or to determine his BOR 2 claim so that it could accordingly be dismissed in that sense. 16.More relevantly, as noted in the Director’s decision, and as is common with most claimants in this type of applications, the Applicant was a farmer in his home country with little education that he obviously was not conversant in English, but his explanation stated in section 5 of his Notice of Appeal for his delay does not appear to me “totally unintelligible” as described by the Adjudicator, and instead it seems quite plain to me that the Applicant meant to say that he did not receive the decision and that he was only told of the result of his case by an immigration officer that he on 10 April 2017 decided to appeal. 17.The Adjudicator was nevertheless in the absence of any further or documentary evidence from the Applicant to corroborate his assertions entitled to find no substance in his application for late filing of his Notice of Appeal, and that it was an undue delay, but before proceeding to decide whether it would be unjust not to allow the late filing under Section 37ZT(3) of the Ordinance, the Adjudicator should have taken account of the merits of the appeal as part of the relevant matters of fact within the knowledge of the Board as required under Section 37ZT(2)(b), as the law was then applicable, regardless of the procedural breaches or the lack of explanation therefor, as so held by the Court of Appeal in Re Qasim Ali, CACV 547/2018 [2019] HKCA 430. 18.While it appears that the Adjudicator did refer to the grounds of appeal given by the Applicant in section 2 of his Notice of Appeal (see [16] of Decision), of which the Adjudicator somehow recited only the first part, with the complete statement as follows:
19.To be fair, that statement in its full contents indeed still did not disclose much of the Applicant’s case, while the Adjudicator did also duly note the findings by the Director in the Further Decision that in the absence of further or additional material that the Applicant had failed to establish a personal 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 ([3] of decision), but as the Board as noted above never previously made any determination of the Applicant’s claim under the other applicable grounds, it would not have any evidential basis to agree with the Director’s assessment, and in its role in the second tier of screening process of the Applicant’s non-refoulement claim, it seems to me reasonably arguable that the Board should not and could not have accepted the Director’s decision as correct without making its own assessment by way of a rehearing of the Applicant’s claim in the first place, which brings me to its first decision. 20.In the Board’s First Decision, as noted above the Adjudicator first found the Applicant’s Notice of Appeal one day late when it was received by the Board on 22 July 2015 after the deadline of 21 July 2015, and that it was also unsigned, and hence it was returned to him to complete section 5 to include an application for late filing and for its reasons as well as his signature, and upon it being refiled on 28 July 2015, it was found to be 7 days late (see [1] of decision). 21.In refusing the late filing of the Applicant’s Notice of Appeal, the Board made the following findings and reasons:
22.Firstly, there does not appear to be any evidential basis for the Adjudicator to find that the Applicant “at best should take a few days” to prepare his grounds of appeal, especially given his background as noted above and the fact that he was no longer legally represented. Even if it were just a general observation on the part of the Adjudicator based on his past experience, it was in my view simply uncalled for and inappropriate given the role of the Board in the second tier of the enhanced screening process of all non-refoulement claims. 23.More relevantly, according to section 1 of the Notice of Appeal, the Applicant was then being detained at the Castle Peak Bay Immigration Centre (“CIC”) which might explain what appeared to be a very slight 1 day delay given the inevitable security checks and inspections of incoming and outgoing mails for inmates and the inconvenience if not difficulty in assessing legal assistance, of which the Adjudicator should have taken into account and exercise his discretion in favour of the Applicant under the circumstances for such an insignificant delay. 24.That is, if it was indeed late, as according to a copy of the envelope supplied by the Board and which delivered the Notice of Appeal from CIC by post to the Board, it in fact showed a postmark that it was indeed posted on 20 July 2015 as asserted by the Applicant, but of which the Adjudicator did not appear to have taken account, or if it did the Adjudicator was plainly wrong in finding that it was a bare statement of the Applicant not supported by documentary evidence. 25.As such the Notice of Appeal was in fact not late when it was posted by the Applicant from CIC on 20 July 2015, or that it should not have been considered as his fault when it was received by the Board one day after the deadline on 22 July 2015, and granted that it had not been properly signed by the Applicant, such an omission could arguably be regarded as an irregularity which could be easily rectified by the Applicant if the Board were to proceed with a hearing of his appeal instead of requiring it to be returned to him to include an application for its late filing which then led to its eventual delay of 7 days. 26.Furthermore, as in his dealing of the Applicant’s second Notice of Appeal, the Adjudicator did not appear to have taken account of the merits of the appeal as part of the matters of fact within the Board’s knowledge including the Director’s assessment of the Applicant’s claim and his proposed grounds of appeal as stated in section 2 of his first Notice of Appeal which consisted of 8 pages of particulars with translations as so required by Section 37ZT(2)(b) of the Ordinance and as held to be necessary in Re Qasim Ali supra. 27.For these reasons I am of the view that the intended application for judicial review of the Board’s decision in both cases is reasonably arguable, having met the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. 28.Accordingly, I extend time to the Applicant as regards the Board’s First Decision, and grant leave to him to apply for judicial review of both decisions of the Board on the bases that the Board (i) erred in law in its First Decision in finding that the Applicant’s Notice of Appeal was late or that it was irrational or Wednesbury unreasonable in the circumstances to refuse its late filing; and (ii) failed to take account of the merits of the appeal in both decisions which were part of the relevant matters of fact within its knowledge under Section 37ZT(2)(b) of the Ordinance. 29.It follows that in accordance with Order 53 Rule 5 of the Rules of the High Court, the Applicant shall file an originating summons within 14 days of this decision and serve a copy thereof together with all the relevant documents on the Board as respondent and on the Director as interested party. Dated the 29th day of December 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
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