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

HCAL 917/2019

[2022] HKCFI 1206

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 917 of 2019

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 8 September 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”). The applicant’s application filed on 3 April 2019 is late. I shall deal with this issue below.

2.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.

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 national of India.  He sneaked into Hong Kong from the Mainland on 2 February 2014 and surrendered to police on 17 February 2014. He lodged a claim for non-refoulement on the ground of cruel, inhuman or degrading treatment or punishment, which the Immigration Department treated as an application on all applicable grounds for non-refoulement claim set out below. During the period of 2014 and 2016, the applicant had committed a number of criminal offences for which he was sentenced to imprisonment.

5.The applicant’s claim was made on the basis that, if refouled, he would be harmed or killed by Makhan because he accused him of having disclosed the whereabouts of his brother Deepa to their enemies, which led to the death of Deepa. The story started with Deepa and his brother, Makhan, who were carrying illegal businesses in the area wanting to use the applicant’s father’s property for illegal business. Deepa proposed to buy or rent the premises. His father refused. They were unhappy about it. In 2010, Deepa and his people assaulted the applicant’s brother, Avtar Singh, with baseball bats, causing injuries to his brother. In 2012, Deepa and his people attacked his brother again with baseball bats. His brother was seriously injured, suffering from bruises and swellings all over his body. In 2013, Deepa was murdered. Makhan took the view that his family had informed Deepa’s enemies of his whereabouts. Makhan continued to press his family for using the property. Avtar Singh disagreed. One day, the applicant was riding a motorbike with his friend. Makhan and his people were in a vehicle, which bumped the applicant from behind. They fell off. Makhan and his people got off and attacked them with baseball bats and beer bottles. He was injured on his right eye and his back. He friend was injured too. He fell unconscious and was admitted to hospital for 2 days. The incident was reported to police, which took no further action. Upon his father’s advice, he moved to live in his uncle’s place in Phagwara City, where he had stayed for about 4 weeks without incident. In order to avoid Makhan, he left his country for China where he stayed for about one month before he came 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

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 way of the Director’s Decision, the Director refused his claim.  The Director found that the level of risk of harm upon the applicant’s refoulement was assessed to be low because (i) the low intensity and frequency of ill-treatment in the past was indicative of a small future risk upon his return to India; (ii) over the past 3 years Makhan did not cause harm to his family in India [16]; (iii) state protection would be available to him [17-20] and (iii) internal relocation was an option open to him [21-23]. There was no evidence to show that his right to life would be violated upon his return to India.

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  The Board scheduled an oral hearing on 31 August 2017 for his appeal.

9.The Board, having considered the applicant’s evidence at the hearing and comparing his evidence in his statement with his oral evidence at the hearing, found that there was no evidence to support of the facts on his father’s property being wooed by Makhan and ill-treatment on him by the gangsters. Also, there was no evidence to show state involvement or  unwillingness of the state to provide protection for him. See paragraphs 23-40. On these bases, the Board affirmed the Director’s Decision and dismissed his appeal.

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 3 April 2019 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, he said he was dissatisfied with the Board’s Decision.

DISCUSSION

12.As mentioned in paragraph 1, the applicant’s application is late. The Court has to consider the length of the delay, the reasons for the delay, the prospect of the intended application and the prejudice to the putative respondent if extension of time is granted. Also, the Court should not grant extension for a hopeless application. See AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 and Re Adumekwe Rowland Ejike [2019] HKCA 702, §19. I shall, therefore first consider the merit of the applicant’s case.

13.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).

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

15.The Board has set out it reasons in support of its Decision.

16.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.”

17.The applicant has not raised any valid ground to challenge the Board’s Decision.

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 realistic prospect of success in his intended judicial review.

CONCLUSION

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

Dated the 4^th day of May 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