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

HCAL 2233/2018

[2022] HKCFI 2835

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2233 OF 2018

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;  or
	consideration of the documents only;  or

Order by Deputy High Court Judge K.W. Lung:

1.   The extension of time for the application for Judicial Review be refused; and

2.   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 June 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s BOR2 Decision”). The applicant’s application, filed on 12 October 2018, is late as the deadline for the filing of the notice of appeal is within 3 months after the Board’s Decision.[1]  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 attempted to enter Hong Kong on 19 March 2015 and was refused permission to land.  He then raised a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by members of Shiromani Akali Dal Party (“SAD”), especially Baljit Singh, because he refused to join the SAD.

5.According to the applicant, he and his family had been supporters of the Indian National Congress (“INC”) since February 2013.  He was actively involved in promoting the INC and believed that he had attracted more voters for the INC during its election against the SAD.  From March 2013 to July 2013, Baljit had personally invited him to join the SAD on multiple occasions but he refused.  Later, SAD formed a coalition with the Bhartiya Janta Party (“BJP”) and Baljit was the local head.  In August 2013, the applicant was attacked by five men with wooden sticks, who warned him to quit the INC.  His report to the police was of no avail because SAD was the ruling party.  The applicant then escaped to Singapore but there was no protection mechanism.  He then returned to India in December 2013.  After a month, the applicant encountered another attack by the SAD members, leading to his hospitalization for two months.  Out of fear, after being discharged from the hospital, the applicant eventually fled to Hong Kong for protection.  Details of his claim are set out at paragraph 6 of the Notice of Decision dated 25 June 2015 by the Director (the “Director’s First Decision”) and paragraphs 2 to 3 of the Board’s 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, BOR 3 risk and Persecution risk for the level of risk of harm from the SAD members was assessed to be low.  In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [14]; (ii) state protection would be available to him [15]-[19]; and (iii) internal relocation was a viable alternative [20]. 

8.On 3 March 2017, 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 BOR 2 risk (the “Director’s Second Decision”).

The Board’s Decision

9.The applicant appealed the Director’s Decisions to the Board.  On 15 March 2018, the Board conducted an oral hearing for his appeal, during which he answered the Board’s inquiries [4]. 

10.In assessing the individual grounds, the Board reminded itself of the relevant legal principles and laid out the country of origin information considered [5]-[16].  The Board found that it was illogical to allege that Baljit would be persistent in asking the applicant, a mere supporter who was unwilling to work for SAD, to join the party and that there was no evidence to suggest that the SAD members all over India had interest in the applicant [18].  Meanwhile, the Board found that there was no medical, hospital or police evidence to show that the applicant had sustained the alleged injuries [23];[29].  In addition, the Board found that the applicant’s claim was devoid of common sense and that his evidence was unreliable [31]-[33].

11.For the above reasons, 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 12 October 2018 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of his application, he said he was not satisfied with the Board’s Decision. His life will be in danger if he returns to his country.

DISCUSSION

14.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.

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 CA, §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. His allegation has been rejected by the Board.

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 19^th day of September 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