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

HCAL 590/2019

[2022] HKCFI 1077

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 590 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 2 October 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”). The applicant’s application dated 1 March 2019 is late for one day short of 2 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 entered Hong Kong illegally on 23 January 2016 and was arrested by the police on the same day.  On 27 January 2016, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by Nirmal Singh (“Nirmal”) due to a land dispute.

5.According to the applicant, starting in August 2015, Nirmal had been attempting to seize their family land.  Initially, the applicant’s father refused Nirmal’s request.  Later in September 2015, when the applicant returned to India from Dubai, he was threatened by Nirmal for the land.  In October 2015, Nirmal sent four or five men to the applicant’s house, demanding him and his family to leave the land.  The men threw the applicant and his family’s properties out of the house and beat them.  The applicant suffered injuries. Despite the applicant reporting the attack to the police, the police did not take any action.  Out of fear, the applicant sought shelters in other villages before eventually fleeing to Hong Kong for protection.  Details of his claim were set out at paragraph 6 of the Director’s Decision and paragraph 3 of the Board’s Decision as described below.  

The Director’s Decision

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)   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”);

(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 a Notice of Decision dated 29 December 2017 (“the Director’s Decision”), the Director refused the applicant’s claim.  The Director refused to believe that the applicant would suffer any real risk of harm upon refoulement because (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [12]; (ii) state protection was available to him [13]; and (iii) internal relocation was an option open to him [14]-[18]. 

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  The Board scheduled an oral hearing on 3 September 2018 for his appeal, during which the Board enquired the material aspects of his claim [18]-[39].  The applicant declined to provide further evidence or submissions to the Board upon invitation [39].  

9.Having considered the applicant’s evidence, the Board found that the applicant’s claim was generalized.  The applicant could not provide any details as to Nirmal or his political affiliation [41]-[45].  It further noted that, while the applicant acknowledged that the land belonged to his father, he failed to provide any evidence showing that Nirmal was currently pressing his father for the land.  It rejected the applicant’s explanation that his father had divided internally the land to him and his brother [46]-[47].  The Board also considered the applicant’s assertion that Nirmal could locate him all over India as fanciful in light of the country of origin information [48]-[49].  In the circumstances, the Board rejected the applicant’s claim and dismissed his appeal.  

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 1 March 2019 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, he said it was dangerous for him to return to India and he would be beaten up too.

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.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.”

16.I have noted that the applicant had refused to provide further information to the Board upon request. He cannot complain that the Board did not accept his evidence.

17.The Court of Appeal in TK v Michael C Jenkins Esq  and Director of Immigration CACV 286/2011, 21 November 2012 [2013] 1 HKC, 526, CA, Hon. Cheung CJHC, Stock VP and Fok JA held:

“25. High standards of fairness certainly do not entitle the torture claimant, having stated a claim, ‘to simply sit back and require the Director to disprove it’. The exercise of determining whether a claim made under article 3(1) of the CAT is valid must be one of “joint endeavour”. CH v Director of Immigration [2011] 3 HKLRD 101, para 47.”

18.The applicant is obligated under the Ordinance to cooperate with the Director and the Board for the assessment of his claim. See section 37ZA (1)(a).[1] As the law imposes an obligation on him to make prompt and full disclosure of all material facts in support of the claim, his refusal to do so is in contravention of the statutory provision and he must bear the consequences. It is not difficult to understand the consequence of the Board not believing his evidence if he refused to answer the questions put by the Board to him. In my view, high standards of fairness give no exemption to the applicant for the compliance of the Ordinance.

19.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 19^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