Singh Harbans v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 1491/2021

[2022] HKCFI 64

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1491 of 2021

BETWEEN

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 September 2021 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”), which confirmed his withdrawal of his appeal against the Director’s Decision dated 26 January 2021 (the “Director’s Decision”), by which the Director rejected his non-refoulement claim.

2.Since he had appealed the Director’s Decision to the Torture Claims Appeal Board (the “Board”), he is not allowed to make application to the Court for judicial review of the Director’s Decision without exceptional circumstances. As the applicant has not been able to show any exceptional circumstances, he is therefore debarred to do so. See Re: Moshsin Ali, [2018] HKCA 549[1]

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, the Director of Immigration (“the Director”) is the interested party and the relief sought is the Board’s Decision instead of the Director’s Decision.

4.The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application on paper.

The applicant

5.The applicant is a national of India.  He entered Hong Kong illegally in January 2020 and was arrested by the police in September 2020.  He lodged a non-refoulement claim on 17 October 2020.  His court proceedings is currently in progress. 

6.The applicant claimed that, if refouled, he would be harmed or killed by his creditor because he was unable to repay the loan.  According to the applicant, in around 2015, he met Jimmy who was a politically influential figure and had business dealings with government officials.  Thereafter, Jimmy invited the applicant to join his steel business and lent the applicant money as investment capitals.  Yet, the business suffered a loss in around 2018 and Jimmy started asking the applicant for repayment.  Being unable to do so, the applicant was threatened and assaulted by Jimmy and followers with a baseball bat.  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 described below.

The Director’s Decision

7.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”).

8.By the Director’s Decision, the Director refused his claim for the reason that his claim was not substantiated. The Director found that the level of risk of him being harmed or killed if he returned to India was assessed to be low [12]-[26]; that state protection would be available to him [27]-[32] and that internal relocation was an option open to him [33]-[38].

The Board’s Decision

9.The applicant filed a notice of appeal/petition on 4 February 2021 (dated 1 February 2021).  On 22 August 2021 and 5 September 2021 respectively, the applicant requested the Board to “close my torture claim case…” so that his suspected offences could be proceeded.

10.On 14 September 2021, the Board wrote to the applicant that, since the withdrawal of the appeal/petition was sought at his free will and that the applicant understood the consequences of the withdrawal, the Board granted the applicant’s application to withdraw the notice of appeal/petition.  Thus, the Director’s Decision remained.

Application for leave to apply for judicial review

11.The applicant filed Form 86 on 26 October 2021 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of his application, he said that he was not satisfied with the Board’s Decision. It is still dangerous for him to return to India.

DISCUSSION

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

14.The issue before the Court is whether the Board’s Decision of accepting the applicant’s application for withdrawing his appeal is subject to judicial review. It is apparent that the applicant made the application to withdraw his appeal on his own volition.

15.The Court of Appeal in Re Das Purnima Rani [2019] HKCA 669, 13 June 2019 held:

“41…. …Once the Board dismisses an appeal against the Director’s refusal of a non-refoulement claim upon a valid withdrawal or abandonment of the appeal by the claimant, in the sense of being the result of a deliberate and informed decision, the appeal is no longer extant and the Board becomes functus officio with no jurisdiction to take any step regarding the appeal. … …s 37V(2)(b) of the Ordinance stipulates that a torture claim rejected by the Director is finally determined when the appeal against it, if one were lodged, was disposed of. Notwithstanding the lack of determination on the merits, the dismissal of an appeal on its withdrawal nevertheless disposed of the appeal. Otherwise, not only would there be no finality in the determination of such claims, much room would be created for abuse by claimants desirous of delaying their removal from Hong Kong by making last minute withdrawals and then subsequently applying for reinstatement of the appeals.

42. The only option left to the claimant who has validly withdrawn his appeal to the Board is to make a fresh non-refoulement claim under s 37ZO(2) if he can fulfil the requirements in sub-ss (a) and (b) thereunder.”

16.The applicant does not have any valid ground to challenge the Board’s Decision.

17.The Court does not find any error of law or procedural unfairness in the Board’s Decision.

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

CONCLUSION

19.I therefore refuse to extend time for the applicant to apply for his intended judicial review.  Accordingly, I dismiss his application.

Dated the 5^th day of January 2022

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

[1] “45. … the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. … the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”