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

HCAL 839/2019

[2023] HKCFI 1267

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 839 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:

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 26 February 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). However, having search through the file, I am unable to find the Board’s Decision with this date. There are 2 Decisions made by the Board, one dated 5 February 2016, which dealt with the applicant’s claim on Torture risk, BOR 3 risk and Persecution risk (“the Board’s First Decision”), the other dated 25 January 2019, which refused to grant extension of time to the applicant to file his notice of appeal against the Director’s Further Decision rejecting his claim on BOR 2 risk (“the Board’s Second Decision”).

2.For better case management of this application, I shall consider the Board’s First Decision and the Board’s Second Decision together, both collectively called (“the Board’s Decisions”). My decision depends on the merits of the Board’s Decisions.

3.The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, I shall deal with his application on paper.

The applicant

4.The applicant is a national of India. He attempted to enter Hong Kong on the strengthen of his Indian passport on 13 August 2015 but was refused permission to land. On the same date, through his legal representatives, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by his three brothers-in-law who were supporters of the Akali Dal Party (“ADP”) due to a land dispute.

5.In short, the disputed land belonged to the applicant’s mother in law. While she was ill, the applicant and his wife stayed in her residence and took care of her. In 2013, the applicant claimed that his mother-in-law legally transferred the disputed land to him. However, he suspected that his sister-in-law had stolen the document. The dispute with his brothers-in-law broke out after his mother-in-law passed away in 2014. The brothers-in-law demanded the applicant to return the disputed land as it should be distributed among them. In order to take the disputed land, the brothers-in-law had threatened and assaulted the applicant on four occasions, during which the applicant sustained injuries. Since he refused to transfer the disputed land to them, and the ADP was in power, out of fear, the applicant eventually fled to Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 22 October 2015 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 Torture risk, BOR 3 risk and Persecution risk as the level of risk of harm upon refoulement was assessed to be low. In elaboration, the Director found that (i) the conducts of his brothers-in-law had shown no intention to materialize the death threats [11]; (ii) state protection would be available to him [12]; and (iii) internal relocation was a viable option [13]-[18].

8.For reasons set out in the Notice of Further Decision dated 14 February 2017, the Director found that the applicant’s right to life would not be violated and thus dismissed his claim on BOR 2 risk (the “Director’s Second Decision”).

The Board’s Decisions

9.The applicant first appealed the Director’s First Decision to the Board. On 20 January 2016, the Board conducted an oral hearing for his appeal. The applicant chose not to testify at the hearing [44].

10.Having considered the evidence, the Board found that there was no evidence on the following aspects: (1) the ownership of the applicant’s mother in law over the disputed land [52]; (2) the mother in law transferred the disputed land and the house to the applicant [53]-[54]; (3) the mother in law’s will or the transferal documents to the applicant was stolen by his sister in law [59]; (4) his brother-in-law was connected with the politician or the police [60]; (5) there was state involvement [61]-[62]; and (6) the applicant had sustained injuries attaining to minimum severity [63]. In light of the above findings, the Board found that the applicant failed to prove the centerpiece of his non-refoulement claim. As a result, on 5 February 2016, the Board rejected his claim and dismissed his appeal against the Director’s First Decision (the “Board’s First Decision”).

11.On 11 April 2017, the applicant sought to appeal the Director’s Second Decision. He was out of time for more than a month [4]. The applicant admitted that he had received the Director’s Second Decision but did not provide any reasons for the delay [16]. In addition, the medical documents submitted by the applicant did not explain why he could not file the notice of appeal/petition on time [24]. Having considered all the circumstances, in the decision dated 25 January 2019, the Board refused to exercise its discretion to allow the applicant’s late filing (the “Board’s Second Decision”).

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

12.The applicant has filed Form 86 dated 27 March 2019 for leave to apply for judicial review of the Board’s Decisions.

13.In his affirmation in support of his application, the applicant said that he is not satisfied with the Board’s Decisions. He has problem in his country.

DISCUSSION

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 Decisions 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 Decisions should be examined with rigorous examination and anxious scrutiny.

16.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.”

17.The Board had assessed his case and it rejected his evidence in the Board’s First Decision on his claim on Torture risk, BOR 3 risk and Persecution risk. For the reason that the applicant was unable to give a satisfactory explanation for his delay in filing his notice of appeal against the Director’s Second Decision on his claim on BOR 2 risk, the Board, in the Board’s Second Decision, refused to extend time for the applicant to file the notice of appeal, which, in effect, dismissed his appeal.

18.In any event, since the Board had dismissed his claim on BOR 3 risk, the applicant’s claim on BOR 2 cannot succeed. The Court of Appeal in Kulwinder Kaur v Director of Immigration and Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2022] HKCA 48, 7 January 2022, held:

“59. … upon determining that there is no BOR 3 risk, there is no arguable ground for any BOR 2 risk: see AA v Sweden (2017) 64 EHRR 20 at [52] and [96]; RM v Gerard Paul Muttrie Esq (unrep., HCAL 166/2015, 3 March 2016) at [52].”

19.The applicant has given no valid reason to challenge the Board’s Decisions.

20.The Court does not find any error of law or procedural unfairness in the Board’s Decisions. 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 grant leave for the applicant to apply for judicial review of the Board’s Decisions. Accordingly, I dismiss his application.

Dated the 16^th day of May 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