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

HCAL 2262/2018

[2022] HKCFI 2880

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2262 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 and oral submissions by the Applicant 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 5 May 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”).  The applicant’s application, filed on 18 October 2018, is late[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 entered Hong Kong as a visitor on 25 December 2013 and was permitted to stay until 8 January 2014.  He did not depart and had overstayed since 9 January 2014.  On 15 March 2014, he was arrested by the police for overstaying.  On 17 March 2014, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by his uncle, Kashmir due to a family dispute.

5.According to the applicant, his uncle Kashmir was not pleased with the distribution of their family properties.  The relationship between the two families deteriorated.  In early 2008, the families had a fight over the dispute and they were both injured.  As the police was indifferent to the applicant’s complaint, his family then moved to another village.  Thereafter, the police arrested the applicant’s father who was later detained and ill-treated by the police because of a false case filed by Kashmir.  They also threatened to kill the applicant if he was caught.  Soon, the applicant went home to attend his grandfather’s funeral, during which he was arrested by the police.  He was taken to the police station and threatened with long term imprisonment.  Out of fear, the applicant escaped to Cyprus before eventually fleeing to Hong Kong for protection.  Details of his claim are set out at paragraph 17 of the Notice of Decision dated 26 January 2016 by the Director (the “Director’s First Decision”) and paragraphs 3 to 18 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 Kashmir 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 [28]; (ii) there was no evidence that associated Kashmir and the police [29]; (iii) state protection would be available to him [30]-[34]; and (iv) internal relocation was a viable alternative [35]-[43]. 

8.On 16 November 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 BOR 2 risk (the “Director’s Second Decision”).

9.For simplicity, the Director’s First Decision and the Director’s Second Decision will be referred to as the “Director’s Decisions”. 

The Board’s Decision

10.The applicant appealed the Director’s Decisions to the Board.  On 2 December 2016, the Board conducted an oral hearing for his appeal, during which he was assisted by an interpreter [22].

11.Having considered the evidence, the Board identified several inconsistencies in the applicant’s claim.  For example, the applicant was inconsistent as to the weapons Kashmir and his associates used during the first fight in early 2008; he was vague about his work in Cyprus; and as the applicant revised before the Board, the dispute with Kashmir was due to his assault against his cousin and thus was a private one [26]-[28]. 

12.In assessing the individual grounds, the Board found that it was a private dispute without state involvement [46]; that the applicant was in fact a fugitive from justice [54]; that state protection would be available to him [58]-[60] and that internal relocation to Delhi or Mumbai would be a viable alternative [61]-[62].  

13.For the aforesaid findings, the Board rejected the applicant’s claim and dismissed his appeal.

Application for leave to apply for judicial review

14.The applicant filed Form 86 on 18 October 2018 for leave to apply for judicial review of the Board’s Decision.

15.In his affirmation in support of his application, he said he cannot go back because it is still dangerous for him to return to India.

DISCUSSION

16.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 merits of the applicant’s case.

17.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).

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

19.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.”

20.The applicant’s reason raised in paragraph 15 above is not a valid ground to challenge the Board’s Decision.

21.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.

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

CONCLUSION

23.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 20^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