Krishan Kumar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2325/2018

[2022] HKCFI 2916

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2325 of 2018

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:

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 25 August 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will 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 on 13 november 2007 as a visitor. He was permitted to stay until 27 November 2007. He overstayed. On 3 December 2007, he was arrested by police and was referred to the Immigration Department. On 18 August 2008, he made a torture claim (the “Torture claim”)[1]. His claim was made on the basis that, if refouled, he would be harmed or killed by his uncle, Jagsher Singh (“Jagsher”) and his elder brother, Gurmel Kumar (“Gurmel”) because he converted his religion from Hindu to Christianity and the dispute of his father’s land with Gurmel.

5.According to the applicant, he converted from Hindu to Christianity in 2006. Jagsher was a gangster. He was not happy for his religious conversion and threatened to kill him. Gurmel was a farmer. He backed up Jagsher and threatened to kill him, part of the reason being was he wanted to take possession of all of his father’s land. In a night in early, he was attacked by 4 or 5 unknown people with bare hands. He did not suffer any serious injury. He guessed that the people were from Jagsher and Gurmel. He reported this matter to police, who did not make investigation into the case. He did not consult a doctor. However, he thought that no one could help him, not even the police. He decided to leave India. On 13 November 2007 he left India for Hong Kong. In Hong Kong, he had approached the Hong Kong sub-office of the United Nations High Commissioner for Refugees and his application was rejected. He applied to the Immigration Department on a claim made under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “Convention”) on 18 August 2008. This claim was taken as the Torture claim.

The Director’s Decisions

6.The Director considered the applicant’s Torture claim.

7.By a Notice of Decision dated 31 October 2013 (“the Director’s First Decision”), the Director refused the Torture claim for the following reasons:

(1)  He failed to attend an interview with the immigration officer on 22 May 2013. Another interview was scheduled for him on 26 July 2013, which he also failed to attended on the reason of being ill. He was unable to produce the medical certificate for the reason that he had lost it.

(2)  The immigration officer sent to his duty lawyer the Questions Sheet for his written submissions. The written submissions were given to the immigration officer. However, his lawyer asked for another interview. Another interview was arranged to take place on 9 October 2013, having confirmed with the applicant that the date was suitable for him. The immigration officer had warned him that if he were absent, his application would be considered on paper.

(3)  He failed to attend on this occasion. His lawyer wrote to explain that he did not attend the interview because he did not have sufficient fund to travel to the Immigration Department. The immigration officer did not accept this explanation. Since the process of arranging an interview with the applicant had taken about 8 months and unsuccessful, the immigration officer decided to consider the applicant’s application on the materials available at that time.

(4)  In the applicant’s statement, he said that he would like to produce the documents on his conversion to Christianity and the land deeds to prove his case. He further said that he was unable to get hold of the documents which were in India. The immigration officer decided to consider his claim without those documents.

(5)  The immigration officer took the view that even if the applicant’s statement of facts were admitted and accepted, his case did not fulfil the conditions under section 37U (1) of the Ordinance as the attack did not cause serious injury to him. He has no idea whom those people belonged. According to the country of origin information, India government provides protection for its citizens. There was no evidence of state involvement in his case.

(6)  The Director, by the Director’s First Decision, rejected the Torture claim. The applicant did not appeal the Director’s First Decision to the Torture Claims Appeal Board.

Application for re-opening of claim deemed withdrawn under section 37ZG of the Ordinance

8.The applicant then applied for non-refoulement protection on all applicable grounds[2] other than the Torture risk under Part VIIC of the Ordinance.

9.On 10 November 2016, a supplementary claim form (“SFC”) and a Notice were served, with the assistance of a Punjabi interpreter, on the applicant at the Castle Peak Bay Immigration Centre (“CIC”). The applicant was required to return the completed SFC to the Immigration Department within 28 days, i.e. on or before 8 December 2016, with the warning that if he failed to do so, his claim would be deemed to have been withdrawn and he might only apply to re-open his claim if he can satisfy the immigration officer in writing that due to circumstances beyond his control, he was unable to do so. At this stage, the applicant was represented by a duty lawyer.

10.The deadline for the return of the SFC was extended, upon the application of the duty lawyer, to 5 January 2017. The applicant failed to return the completed SCF by 5 January 2017. His claim was therefore deemed to have been withdrawn on 6 January 2017. By then, the duty lawyer had informed the Director that he had ceased acting for the applicant.

11.By letters respectively dated 18 March 2017 and 20 March 2017, the applicant requested to reopen his non-refoulement claim. The immigration officer requested the applicant to explain in writing the reasons for his failure of submitting the completed SFC to him.

12.By a sheet dated 3 April 2017 to the Director, the applicant said that after his release from CIC, he had no place to sleep and he slept in his friend’s place or in the park. He lost his mobile, so he forgot the interview on 6/1/17. He was then arrested by police and put in jail for 10 weeks. On 17/3/17, he was detained in CIC where he discovered that his case had been withdrawn.

13.By another letter received by the Immigration Department on 5 April 2017, the applicant supplemented his reasons by saying that he was in prison for 10 weeks as from 6 January 2017, therefore he missed the interview. His phone was stolen. On the night of 6 January, he was under intoxication of alcohol and he had a fight with some someone. He was arrested by police and put into jail for 10 weeks. On 17 March 2017, he was sent to CIC.

14.The immigration officer was not satisfied with his explanation that he was unable to submit his completed SFC due to circumstances beyond his control. By Notice of Decision dated 13 April 2017 (“the Director’s Second Decision”), the Director refused to re-open the applicant’s claim.

The Board’s Decision

15.The applicant appealed the Director’s Second Decision to the Board.  The Board decided to consider the appeal without a hearing.

16.The Board considered section 37ZG(1), (2) and (3) of the Ordinance:

(1) A torture claim must be treated as withdrawn if the person who made the claim fails to return a completed torture claim form as required under section 37Y(2).

(2) An immigration officer must give the person who made the claim a written notice stating that—

(a) the torture claim is treated as withdrawn under subsection (1); and

(b) the person may apply to re-open the claim under subsection (3).

(3) A torture claim treated as withdrawn under subsection (1) may be re-opened if the person who made the claim provides sufficient evidence in writing to satisfy an immigration officer that the person— (Amended 7 of 2021 s. 14)

(a) had exercised all due diligence to return a completed torture claim form as required under section 37Y(2); but

(b) failed to return a completed form as required under the section because of circumstances beyond the person’s control. (Amended 7 of 2021 s. 14)

17.Having considered those events in the Director’s Second Decision as mentioned in paragraphs 8-14 above, and for the reasons given [14], the Board found that the applicant had not provided sufficient evidence in writing to support his application to re-open his non-refoulement claim under section 37ZG(3) of the Ordinance. It found that the Director was justified to refuse the applicant’s application to re-open his non-refoulement claim [17]. By the Board’s Decision, the Board dismissed his appeal.

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

18.The applicant has filed Form 86 on 23 October 2018 for leave to apply for judicial review of the Board’s Decision.

19.In his affirmation in support of his application, the applicant said he is not satisfied with Board’s Decision. He cannot go back to his country because his life will be in danger.

DISCUSSION

20.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).

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

22.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence … … 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.”

23.The Board had found that, based upon the applicant’s evidence, he was arrested by police because of a fight with someone on 6 January 2017. By then, his non-refoulement claim was deemed to have been withdrawn under the law. The applicant’s explanation for not submitting the completed SFC to the immigration officer before 6 January 2017 was not acceptable to the immigration officer. The Board considered that the immigration officer was entitled to make the decision of not reopening the applicant’s non-refoulement. Those grounds in paragraph 19 above are not valid reasons to challenge the Board’s Decision.

24.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.

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

CONCLUSION

26.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 11^th day of October 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