Ashok Kumar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 941/2019 on BabelCite. This High Court CFI judgment was delivered on 23 November 2022.
1. The applicant applies for leave to apply for judicial review of the Decision dated 2 November 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). His application filed on 8 April 2019 is late. [1] I shall deal with this issue below.
Cites 3 cases
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HCAL 941/2019 [2022] HKCFI 3563 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 941 of 2019
Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge’s decision (Ord. 53 r. 3) Following:
Order by Deputy High Court Judge K.W. Lung:
Observations for the Applicant: THE APPLICATION 1.The applicant applies for leave to apply for judicial review of the Decision dated 2 November 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). His application filed on 8 April 2019 is late.[1] I shall deal with this issue below. 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 him to appear before Court on 21 September 2022. However, he was absent without prior notice to the Court. His application is therefore 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 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 illegally on 20 August 2015 and was arrested by the police on the same day. On 22 August 2015, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by members of the Shriromani Akali Dal Party (“SAD”) because of his support for the Congress Party (“CP”). 5.According to the applicant, he had been an active supporter for CP since 2002. In around 2013, he was asked by the village leader of CP, whose name he had forgotten, to work as an informant and to collect information about the activities of the SAD members. However, Gurpal Singh, the leader of the SAD in Iserheri village found out about the applicant’s activities. Gurpal threatened him. Yet, the applicant ignored the threats and continued with his work. In June or July 2015, the applicant escaped from an assault from five or six strangers who he believed to be sent by Gurpal. Upon the advice of his family and friends, the applicant fled to Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 14 December 2017 by the Director (the “Director’s Decision”). The Director’s Decision 6.The Director considered the applicant’s claim in relation to the following risks:
7.By way of the Director’s Decision, the Director dismissed the applicant’s claim for the level of risk of harm upon his refoulement 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 [12]; (ii) state protection would be available to him [13]-[16]; and (iii) internal relocation was a viable alternative [17]-[23]. The Board’s Decision 8.The applicant appealed the Director’s Decision to the Board. The oral hearing before the Board was scheduled to be on 2 August 2018. However, the applicant did not appear at the hearing nor did he provide any explanation for his absence despite the request sent by the Board. As a result, the Board proceeded to determine his appeal on the available evidence [10]. 9.The Board recapped the applicant’s claim and his evidence before the Director [26]-[34]. It proceeded to consider the credibility of the applicant’s claim and identified several matters that raised concerns. In particular, it noted that, despite the applicant claimed to be an active supporter of the CP, he could not even recall the name of his own party leader [40]. It also found that the applicant failed to specify the purpose of the information he gathered and that he did not seek help from his party leader if the assigned work caused him troubles [41]. The Board further found that the applicant failed to explain how he could escape from the assault from five to six strangers [42] and that he failed to substantiate a future risk of harm if no harms were inflicted on him in the past [43]. 10.Since the applicant failed to appear before the hearing and the above concerns were not clarified by him, the Board concluded that he did not face any real risk of harm from the claimed SAD members and thus dismissed his appeal. Application for leave to apply for judicial review of the Board’s Decision 11.The applicant has filed Form 86 dated 8 April 2019 for leave to apply for judicial review of the Board’s Decision. 12.In his affirmation in support of his application and the grounds attached to Form 86, the applicant set out the grounds below. He referred to the Director. I shall take it as referring to the Board and the Board’s Decision.
DISCUSSION 13.As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. The deadline of his application is on 2 February 2019. The delay is about 2 months. He has given no explanation for his delay and his application can be dismissed on this basis alone. However, I shall first consider the merits of the applicant’s case. 14.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). 15.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. 16.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
17.As to the grounds in paragraph 12 above, there is no evidence that he was tortured by the enforcement agencies or the political circles. The other grounds are only assertions or opinions without any evidence in support. 18.The Board had assessed his evidence and, for the reasons above, found that he did not face any real risk of harm from the claimed SAD members, which is the fact of his case. 19.There is no valid reason to challenge the Board’s Decision. 20.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. 21.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review. CONCLUSION 22.I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application. Dated the 23rd day of November 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 [1] Delay in applying for relief (O. 53, r. 4)
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