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

HCAL 199/2019

[2022] HKCFI 1058

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 199 of 2019

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:

Extension of time for the application for Judicial Review be refused &

the application for Judicial Review be dismissed.

Observations for the Applicant:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Decision dated 25 November 2015 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”). The deadline for the applicant to take out the application is 25 February 2016. The applicant’s application on 22 January 2019 is late for over 2 years and 10 months. 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 sought to enter Hong Kong on 14 July 2015 but was refused permission to land.  On the same date, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by Rajat Kumar (“Rajat”). 

5.According to the applicant, he witnessed a hit-and-run incident in February 2015.  Three days later, while he was showing a photo he took at the crime scene to his villagers, he was told that the driver was Rajat’s son. Rajat was influential and had political affiliations with the ruling party. Later, during the police investigation, the applicant told the police what he saw.  Nevertheless, the police attempted to talk him into changing the statement and told him that Rajat would kill him if he refused to do so.  In March 2015 and April 2015, the applicant claimed to be threatened and attacked by Rajat’s associates for not withdrawing his statement.  The applicant was injured and received stitches.  He escaped to Goa, he was attacked by Rajat’s men in a shooting incident, in which his friend was shot.  Not only did the police in Goa refuse to accept his complaint but they also detained the applicant as the perpetrator of this shooting incident.  Out of fear, he eventually fled to Hong Kong for protection.  Details of the applicant’s claim were set out at paragraph 6 of the Notice of Decision dated 7 September 2015 (“the Director’s First Decision”) and paragraph 18 of the decision dated 25 November 2015 by the Board (“the Board’s First Decision”) described below.

The Director’s Decisions

6.The Director considered the applicant’s claim in relation to the following risks:

(1)   risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(2)   risk of violation of the right of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (“BOR 2 risk”);

(3)   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

(4)   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 the Director’s First Decision, the Director refused his claim on the grounds of Torture risk, BOR3 risk and Persecution risk. The Director found that the level of risk of harm upon his refoulement was assessed to be low because (i) the applicant failed to provide the link between his alleged attacks and Rajat [11], (ii) Rajat and his people had shown no intention to cause serious harm or kill the applicant [12]-[13]; (iii) state protection was available to him [14]; and (iv) internal relocation was an option open to him [15]-[18]. 

8.In the Notice of Further Decision dated 3 July 2017, the Director also rejected the applicant’s claim on BOR2 risk (“the Director’s Second Decision”) for the reason that there was no evidence that his right of life under BOR 2 would be violated upon return to his country.

The Board’s Decisions

9.The applicant first appealed the Director’s First Decision to the Board.  On 9 November 2015, the Board scheduled an oral hearing for his appeal. 

10.The Board observed that the applicant had failed to adduce any objective evidence for the following material aspects of his claim, in particular: (i) the political connections of Rajat; (ii) the personal information of Rajat’s son; (iii) the fate of the old man who was hit by Rajat’s son and (iv) the hospital he was taken to for treatment after the incident in Goa [26]-[35].  In passing, the Board found it odd that the applicant’s claim that the attackers did not take his phone as the photo at the crime scene was an important piece of evidence [31].  It also noted that the claimed police ploy to frame the applicant for the shooting incident was risky as the victim, who was his friend, might give contradictory statement [35].    

11.Further, the Board found that the applicant’s evidence was inherently contradictory and that he was unable to provide cogent explanations for the inconsistencies [40]- [50].  It noticed that the applicant’s evidence either contradicted with the country of origin information and objective documents or he could not recall certain crucial details [59]-[70].  Based on the unexplained inconsistencies, the Board refused to accept the centerpieces of the applicant’s claim [74]-[76].  For these reasons, by way of the Board’s First Decision, the Board rejected his claim on Torture risk, Persecution risk and BOR3 risk and dismissed his appeal against the Director’s First Decision.

12.By way of a decision dated 16 January 2019, the Board also set out the reasons for rejecting the applicant’s appeal against the Director’s Second Decision (“the Board’s BOR2 Decision”).  The Board decided the applicant’s appeal on paper as it found that there were no new materials adduced by the applicant. It considered the relevant legal principles and, in light of the Board’s finding of facts in the Board’s First Decision, it refused to accept that the applicant’s life would be arbitrarily deprived of in any form upon refoulement and thus the applicant failed to establish a claim under BOR2 risk.   

Application for leave to apply for judicial review

13.The applicant filed Form 86 on 22 January 2019 for leave to apply for judicial review of the Board’s Decision.

14.In his affidavit in support of his application, he said he would like to reject and review the Board’s Decision as it disregarded his dangerous situation.

DISCUSSION

15.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.

16.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).

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

18.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.”

19.The Board has given its reasons for its Decision. The applicant has not raised any valid ground to challenge the Board’s Decision.

20.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.

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

CONCLUSION

22.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 14^th day of April 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