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

HCAL 706/2019

[2022] HKCFI 2311

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 706 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 the 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.The applicant applies for leave to apply for judicial review of the Decision dated 7 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Second Decision”).

2.The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), a date was fixed for his hearing. However, the applicant was absent without prior notice to the Court. The application is therefore dealt with on paper.

The applicant

3.The applicant is a national of India. He entered Hong Kong as a visitor on 23 October 2010 and was permitted to stay until 27 October 2010. However, he did not depart and had overstayed until 28 October 2010. On 10 November 2010, he surrendered to the Immigration Department. On the same date, he lodged a claim under Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. His claim was later taken as a non-refoulement claim upon the commencement of unified screening mechanism. The basis of his claim was that, if refouled, he would be harmed or killed by the supporters of Akali Dal Party (“ADP”) because of his involvement with the Indian National Congress Party (“CP”).

4.According to the applicant, he started to support CP in 2006. One night in February 2007, the applicant and his friend were intercepted by the ADP members who demanded the applicant to leave CP and join the ADP. Met with the applicant’s refusal, they attacked him with hockey sticks. He was hospitalized for 8 to 9 days. A few days later, he reported the assault to the police. However, the police arrested him for the assault against the ADP members. He was detained for three days, during which he was again assaulted by the police officers. After a bribe, the applicant was released. He then went into hiding but found out that the ADP members kept looking for him. In around August 2009, he was attacked by the ADP members and again hospitalized. Out of fear, he eventually fled to Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 28 May 2015 by the Director (the “Director’s First Decision”).

The Director’s Decisions

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

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

b.  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”);

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”).

6.By way of the Director’s First Decision, the Director rejected his claim on BOR 3 risk, Torture risk and Persecution risk on the basis that the level of risk of harm upon refoulement was assessed to be low. In elaboration, the Director found that (i) the seriousness of the incidents and the subsequent actions taken by the ADP members indicated no real and future risk of harm [12]-[31]; (ii) state protection would be available to him [32]-[35]; and (iii) internal relocation was a viable alternative [36].

7.For the reason that the applicant failed to establish that his right to life would be violated upon his return, by Notice of Further Decision dated 8 February 2017, the Director also rejected the applicant’s claim on BOR 2 risk (the “Director’s Second Decision”).

The Board’s Decisions

8.On 15 June 2015, the applicant first appealed the Director’s First Decision to the Board. He was 3 days out of time [4]. The applicant explained “…I apologize because I had forgotten” [sic] [6].

9.The Board was of the view that it would not entertain any trivial excuses unless there was extenuating circumstance which made the 14-day period for filing of the notice of appeal/petition impossible [7]. As a result, it considered that the applicant’s explanation of forgetfulness was unacceptable and would not be entertained [8].

10.Thus, having reviewed the applicant’s grounds of appeal and the Director’s First Decision, the Board found that the Director’s First Decision could not be faulted. In the decision dated 31 August 2015, the Board refused to allow the late filing of the notice of appeal/petition against the Director’s First Decision [9]-[11] (the “Board’s First Decision”). At paragraph 9 of the Board’s First Decision, the adjudicator said:

“I have carefully considered the Notice of Decision [the Director’s First Decision]. The Immigration Officer had seriously considered and analyzed his claim in detail. I cannot find fault with his decision.”

11.On 15 January 2019, the Board held an oral hearing for the applicant’s appeal against the Director’s Second Decision. After considering the applicant’s grounds of appeal, the Board found that it merely contained hearsay statements [9] and did not disclose any additional facts to support his claim under BOR 2 risk. The Board further noted that the information provided in the applicant’s grounds of appeal only concerned his problem with the ADP members which had been determined in the Board’s First Decision. Pursuant to the principle of res judicata, the Board concluded that it could not be re-litigated.

12.Thus, by way of the Board’s Second Decision, the Board dismissed his appeal against the Director’s Second Decision.

Application for leave to apply for judicial review of the Board’s Decision

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

14.In his affirmation in support of his application, the applicant set out the grounds below.

(1)  The adjudicator did not inform him that he could complain.

(2)  The Board had unlawfully fettered its discretion by refusing his appeal on the grounds that it did not satisfy the requirements.

(3)  The adjudicator acted in a procedurally unfair manner in dealing with his appeal: there was no hearing and he was not legally represented; he was not given the chance of submitting written submissions and evidence; the Board relied upon the source of news which is not officially recognized or it is simply hearsay and they are outdated, resulting in its speculation of his case.

(4)  The Board’s Second Decision was unreasonable or irrational in the public law sense, or are a result of procedural errors or unfairness.

(5)  The Board failed to meet the greater care and duty owed to a self-represented claimant.

DISCUSSION

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 Second Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that he had had a fair hearing before the Board and he had nothing to say.

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.Those grounds in paragraph 14 above are not valid reasons to challenge the Board’s Second Decision.

19.Ground (1) fails as it is not a valid ground to challenge the Board’s Decision. The law does not provide that the Board must inform him that he could complain. Grounds (2), (4) and (5) are his bare assertions or opinions without any evidence or specific in support. Insofar as Ground (3) is concerned, his issues will be answered in the following manner. The Board has the discretion not to hold a hearing under Schedule 1A of the Ordinance.[1] The applicant has not been able to inform this Court what submission that will assist his appeal was not allowed to be submitted to the Board. Such written submissions should have been submitted in his notice of appeal. As the Board did not have question for the applicant, the Board might decide to determine the appeal without a hearing. The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178 held that the applicant is not entitled to free legal representation at every stage of the proceedings as he had already had duty lawyer’s service at the screening stage [22]. It is only his opinion that the Board had relied upon source of news that is outdated or not officially recognized. This ground fails too.

20.The Court does not find any error of law or procedural unfairness in the Board’s Second Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

21.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

22.I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. 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