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

HCAL 751/2019

[2023] HKCFI 429

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 751 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 Applicant being absent in open court;

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

1.  Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 26 January 2015 refused; and

2.  The application for leave to apply for Judicial Review dismissed.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 26 January 2015 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). His application filed on 18 March 2019 is late.[1] The deadline for the application is 26 April 2015. The delay is serious. 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 proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant is a national of India. He attempted to enter Hong Kong on 29 May 2014 but was refused permission to land. His second attempt was also refused on 9 June 2014. On the same date, 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 Bharatiya Janata Party (“BJP”) because he was a loyal supporter of Indian National Congress (“INC”).

5.According to the applicant, the INC and the BJP were political rivals. He had been a supporter of INC all along. The clashes with the BJP members started in January 2013 when he refused their invitations to join the BJP. He was unharmed in the first incident. Later in March or April 2013, together with other supporters of INC, the applicant bumped into members of BJP who were drunk. They used foul language towards the applicant. Later, some BJP members crashed a INC rally and the applicant was able to retreat unharmed. In July or August 2013, some BJP members threw stones at the applicant while he was on his way home after attending an INC meeting. In January 2014, the applicant was again attacked by some unknown men with sticks and he was also threatened. In late January 2014, the applicant’s friend got into a heated argument with the BJP members. His friend was hurt and the applicant was able to leave unharmed. Later during the first week of February 2014, the applicant was again assaulted by some BJP members. Thereafter, out of fear, the applicant fled to Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 5 September 2014 by the Director (the “Director’s First Decision”).

The Director’s Decisions

6.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”).

7.By way of the Director’s First Decision, the Director dismissed the applicant’s claim on the grounds of Torture risk, BOR3 risk and Persecution risk. In elaboration, the Director found that (i) the behaviors of his enemies showed no real intention to harm or kill him [12]; (ii) state protection would be available to him [13]; and (iii) internal relocation was a viable option [14].

8.For reasons set out in the Notice of Further Decision dated 9 February 2017, the Director also found that the applicant’s right to life would not be violated and thus dismissed his claim on BOR2 risk (the “Director’s Second Decision”).

The Board’s Decision

9.The applicant only appealed the Director’s First Decision to the Board. On 19 December 2014, the Board conducted an oral hearing for his appeal.

10.Having considered the evidence, the Board made the following findings. It noted that, on the applicant’s own evidence, he was only a supporter who had limited knowledge about the INC. He was only assigned with trivial duties and there was little cause for the BJP to be afraid of the applicant on the basis of his political knowledge or election and campaign skills. The Board therefore rejected that the applicant was a target for the BJP [20]-[21]. Meanwhile, the BJP had won the 2014 general election. There was no evidence that the applicant had contributed substantially in assisting in the election which would affect BJP’s political interests. Thus, the Board refused to accept that the BJP had maintained a continued adverse interest against the applicant [24]. Further, after examining the accounts advanced by the applicant, the Board found that his story cannot stand and cast doubt on his credibility [35]-[36]. In addition, the applicant’s assertion that the police would not offer protection remained a mere assertion without proof [25]-[29]. In assessing the individual grounds, the Board also found that there was no state involvement [44]-[50].

11.In light of the aforesaid, the Board concluded that the applicant’s claim was without merits and thus dismissed his appeal.

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

12.The applicant has filed Form 86 dated 18 March 2019 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of his application, he said he wants to stay in Hong Kong until his problems have been solved. Otherwise, his life will be in danger.

DISCUSSION

14.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 26 April 2015. The delay is about 3 years and 9 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.

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 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 Board had assessed his evidence and, for the reasons given, rejected his evidence on the facts of his claim. Those grounds set out in paragraph 13, supra are not valid to challenge the Board’s Decision.

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

21.At the time of preparing this decision, the applicant has filed an affirmation dated 11 January 2023 to apply to withdraw his application as he has no problem in his country and he wants to go back home.

CONCLUSION

22.Therefore, 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 23^rd day of February 2023

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