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

HCAL 1218/2022

[2023] HKCFI 718

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1218 of 2022

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.   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.The applicant applies for leave to apply for judicial review of the Decision dated 5 May 2020 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). His application filed on 7 November 2022 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.

The applicant

3.The applicant is a national of India.  He entered Hong Kong illegally on 8 September 2014 and was arrested by the police on the same date.  On 11 September 2014, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by Ravi Sehgal and his people, and be framed with a false case lodged by Ravi because he refused to join the Bharatiya Janata Party (“BJP”).

4.According to the applicant, he was a supporter of Indian National Congress (“INC”) and had been supporting the INC since 2011.  The applicant’s family had an automobile repairing and maintenance service company called Akal Auto Engineering Works.  Ravi, a member of country assembly of BJP, operated a competing company.  In around 2012, one of Ravi’s long term customer left him and joined Akal.  Ravi and his son, accusing the applicant’s family of touting their clients, assaulted the applicant as well as his family members.  At the police intervention, both parties signed the compromise agreement and yet the grudge between them still existed.

5.One night in 2013, while the applicant and his friends were on the way home after a movie, he was intercepted by Ravi’s son and other men.  They started hitting the applicant with bricks and beer bottles, shouting that this was a revenge for Ravi.  Later, when the applicant reported the assault to the police, he found out that Ravi’s son had already filed a case against him.  The applicant was detained in the police station and ill-treated therein.  Even after the applicant sought assistance from his party leader, the police still didn’t act upon the attackers.  Meanwhile, the threatening phone calls to the applicant and his family ensued.

6.In addition, in an attempt to solve the dispute with Ravi, the applicant and his father attended a meeting with him.  However, Ravi demanded them to join the BJP but the applicant and his father refused.  Thereafter, Ravi and his son started to threaten the applicant’s sister and brother.

7.The applicant escaped to Qatar in January 2013 but was constantly notified that Ravi and his son never stopped harassing his family.  On 28 February 2014, the applicant returned home with a hope to solve the dispute.  A temporary agreement was reached that both sides would cease the arguments until the conclusion of the election in 2014.  However, in June 2014 after the election, the applicant was followed by Ravi’s son and hit by his car.  A month later, Ravi’s son came with some men carrying offensive weapons to locate the applicant in his cousin’s home, threatening to kill him.  While the applicant was able to escape, out of fear, he decided to seek protection in Hong Kong. Details of his claim are set out at paragraph 9 of the Notice of Decision dated 19 June 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

8.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”).

9.By way of the Director’s Decision, the Director dismissed the applicant’s claim.  In elaboration, the Director first identified matters which undermined the applicant’s claim [14] and proceeded to find that (i) the low intensity and frequency of past ill-treatments from Ravi and his men indicated an unlikelihood of future risk of harm [15]; (ii) the available information did not support a claim that the applicant was targeted by the BJP [16]; (iii) the applicant was not politically active to attract the risk of harm from the BJP led Indian government [17]; (iv) there was no evidence that he was of adverse interest of the risk State [18]; (v) state protection would be available to him [19]-[27]; and (vi) internal relocation was a viable option [28]-[33].

The Board’s Decision

10.The applicant appealed the Director’s Decision to the Board.  On 20 March 2020, the Board conducted an oral hearing for his appeal, during which he testified.

11.The Board considered the country of origin information (“COI”) and noted that, inter alia, the list of candidates for the provincial assembly election in 2014 did not include Ravi and the applicant’s alleged party leader Pari [24]-[27].  It also evaluated the applicant’s oral evidence [28]-[38].

12.The Board observed that the applicant’s central claim was that he would be harmed or killed by Ravi or other BJP members because he and his father refused to join them.  Besides, due to Ravi’s influence, the police would not offer protection to them [40].  However, the Board found that this claim could not stand in light of the COI as well as the applicant’s own evidence.  First, Ravi was not an elected representative and, in the end of the hearing, the applicant stated that he did not remember whether Ravi was a BJP member [41]. Secondly, contrary to his written statement, he testified that his father was unharmed at the moment despite being a target of Ravi [42].  Thirdly, the applicant failed to give a coherent and detailed evidence to support his claim which undermined his credibility [43]-[44].

13.In these premises, the Board found that the applicant’s claim lacked credibility and rejected his claim.  The applicant’s appeal was therefore dismissed.

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

14.The applicant has filed Form 86 dated 7 November 2022 for leave to apply for judicial review of the Board’s Decision.

15.In his affirmation in support of his application, the applicant said that the date of the Board’s Decision is 5 May 2020 whereas the letter informing him of the Board’s Decision is 2 June 2022. He further alleged that the Board’s Decision was made without hearing him.

DISCUSSION

16.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 5 August 2020. The delay is about 2 years and 3 months. He has given the reason that it was due to the delay of the Board informing him of the Board’s Decision. This reason will be taken into consideration. However, I shall 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 Board had assessed his evidence and, for the reasons given, rejected his evidence on the facts of his claim. The grounds in paragraph 15, supra, do not assist his application.

21.The delay of the Board informing him of the Board’s Decision is unfortunate. There is no explanation in the letter of the Board. Even taking the date of the letter from the Board, i.e. 2 June 2022 as the date he had notice of the Board’s Decision and time should run therefrom, the applicant is still late for about 2 months, which is a serious delay by itself. According to the Board’s Decision, the applicant had attended the hearing before the Board and had given evidence. See paragraph 10, supra. What more important are the merits of his proposed judicial review. The applicant has given no valid ground in substance to challenge the Board’s findings of the facts of his case.

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

CONCLUSION

23.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 28^th day of March 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