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

HCAL 705/2019

[2022] HKCFI 2312

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 705 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:

1.  Extension of time for the Applicant to apply for leave to apply for Judicial Review be refused; and

2.  The application for leave to apply 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 4 April 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”). The date of the Board’s Decision should be 9 April 2018. This will be rectified below. He also applied for leave to apply for judicial review of the Decisions of the Director of Immigration dated 4 November 2015 and 5 December 2016 respectively. Since the Director’s Decisions had been dealt with by the Board’s Decision, they are not amenable to judicial review and are therefore dismissed.[1] The applicant’s Form 86 filed on 13 March 2019 is late for his application. This issue will be dealt with below.

2.The applicant asked for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), a hearing was fixed for him. However, the applicant was absent without prior notice to the Court. The application will be dealt with 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, the Director of Immigration (the “Director”) is the interested party and the date of the Board’s Decision is 9 April 2018 instead of 4 April 2018.

The applicant

4.The applicant is a national of India. He last entered Hong Kong on 12 August 2010 as a visitor and was permitted to stay until 26 August 2010, which, after his applications for extension of stay, was extended to 17 September 2010. However, he did not depart and had overstayed since 18 September 2010. On 5 October 2010, he was arrested by police for breach of condition of stay by taking up unapproved employment. On 13 November 2010, he lodged a torture claim. His torture claim was taken as a non-refoulement claim after the implementation of the unified screening mechanism, and the basis of his claim was that, if refouled, he would be harmed or killed by his father’s business partners.

5.According to the applicant, his father ran a garment business together with the two business partners. The applicant had no involvement in the business and hence had little knowledge about it. Starting in February 2000, the garment business suffered a significant loss. The business partners blamed his father for the loss and demanded the applicant’s father to compensate them. In March 2000, some unknown men came to his uncle’s house, where the applicant’s family also resided, but could not find his father. Thus, they vandalized the house and slapped the applicant. His uncle then asked the applicant’s family to leave the house. After several relocations, the applicant’s father fled to China to avoid the threats in April 2000. Meanwhile, the applicant relocated to New Delhi. In around March or April 2001, he encountered four unknown men who beat and tortured him upon knowing his relationship with his father. He was imprisoned for three days before being taken to the police station and framed up for criminal offences. After his friend Vicky had bailed him out, the applicant decided to flee his home country for protection in October 2004. Later, in 2008, he returned to India once as his passport expired. Nevertheless, many people still came to ask his whereabouts. Eventually, he fled to Hong Kong for protection. He also learnt that his father was framed up for a murder case and was sentenced to prison. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 4 November 2015 by the Director (the “Director’s First Decision”).

The Director’s Decisions

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

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

(2)  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“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 way of the Director’s First Decision, the Director dismissed his claim on the grounds of Torture risk, BOR3 risk and Persecution risk for the level of risk of harm from the business partners was assessed to be low. In elaboration, the Director found that (i) the applicant suffered no harms prior to his departure on 1 October 2004 [14]. Besides, the harm from the business partners was localized and their enmity against the applicant might have already disappeared after such a long period, especially they had put the applicant’s father in jail [15]; (ii) state protection would be available to him [16]; and (iii) internal relocation was a viable alternative [17].

8.On 5 December 2016, for reasons set out in the Notice of Further Decision that there was no evidence to show that his right to life would be violated upon his return, the Director also rejected the applicant’s claim on BOR2 risk (the “Director’s Second Decision”).

The Board’s Decision

9.The applicant appealed the Director’s Decisions to the Board. The initial hearing on 31 May 2017 was adjourned to 1 December 2017 to facilitate the applicant’s understanding of the relevant documents [45]-[49].

10.Having considered the applicant’s evidence, the Board found that his claim lacked credibility [63]. The Board found that, on the applicant’s own evidence, the business partners did not intend the applicant to repay his father’s debt. Rather, they wanted to extract from the applicant his father’s whereabouts. The applicant claimed that his father was serving the prison terms due to a murder case framed by the business partners. There was therefore no doubt that the business partners already knew the location of the applicant’s father [64]-[66]. Further, it had been 17 years since the applicant had any direct contact with the business partners and the harms, if any, were dissipated [67]. In addition, the Board also identified the discrepancies in the material aspects of his claim and refused to accept his explanation of returning to India in 2008 for the missing passport and of failing to lodge the protection claim promptly [68]-[74]. In any event, the country of origin information provided that a relocation to Mumbai was a viable alternative for the applicant [79]-[81].

11.Thus, the Board rejected the applicant’s claim and dismissed his appeal.

Application for leave to apply for judicial review

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

13.In his affirmation in support of his application, he enclosed the hearing bundle without setting out any ground.

DISCUSSION

14.As mentioned in paragraph 1, the applicant’s application is late for about 5 months. 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.

15.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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

17.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.”

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

19.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.

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

CONCLUSION

21.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 28^th day of July 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