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

HCAL 1136/2019

[2023] HKCFI 2234

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1136 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 present 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 leave to apply for Judicial Review be dismissed.

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 11 January 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). His application filed on 29 April 2019 is late.^[1] The deadline for the application is 11 April 2019. The delay is about 18 days. I shall deal with this issue below.

2.The applicant asked for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, a hearing was fixed for him and he appeared before the Court on 6 March 2023.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, 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 entered Hong Kong illegally on 1 January 2016.  On 6 January 2016, he surrendered to the Immigration Department.  On 16 May 2016, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by his paternal uncle, Nachitar Singh, due to a land dispute.

5.In brevity, in around 2014, the applicant’s father distributed a piece of land equally among the applicant and his two elder brothers.  However, by the end of 2014, Nachitar had successfully tricked the applicant’s two elder brothers in transferring their portions to him at a smaller sum.  Nachitar wanted to occupy the applicant’s portion too.  A month later, Nachitar and his men approached the applicant for the transferal of his land.  Met with the applicant’s refusal, Nachitar and his men attacked the applicant with wooden sticks, resulting in the applicant’s hospitalization.  Two weeks later, Nachitar visited the applicant again.  He was furious at the applicant’s attempt to file a police report against him and threatened to kill the applicant.  Out of fear, the applicant eventually fled to Hong Kong for protection.  Details of his claim are set out at paragraph 7 of the Notice of Decision dated 8 June 2018 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:

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 Decision, the Director dismissed the applicant’s claim.  In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [16]-[17]; (ii) state protection would be available to him [18]-[23]; and (iii) internal relocation was a viable option [24]-[30].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 12 October 2018, the Board conducted an oral hearing for his appeal, during which he was assisted by an interpreter qualified in Punjabi and English languages [33]. 

9.The Board recapped the applicant’s claim and his personal background, as well as summarized his oral testimonies before it [37]-[105].  Having considered the evidence, the Board concluded that the applicant was not a witness of truth [109].  In particular, the Board noted that it was unreasonable that the applicant’s brothers never informed their family of their transferal of lands to Nachitar and neither did his father reason with his brothers about their drinking problems; that the applicant only mentioned the influential position of Nachitar’s son at the hearing before the Board and left this significant information out before the Director; that the applicant was vague about the background of Nachitar; that the applicant’s allege injuries, in accordance with his own evidence, were not actively treated once the five stitches were done on his nose; that Nachitar did not go to the hospital where the applicant was in to pressurize him for the transferal of the land; and that it was unreasonable that the applicant’s father was capable of transferring the titles of the land to the applicant and his brothers but was unable to provide any documentary proof for the ownership of the land [110].

10.In light of the aforesaid inconsistencies, gaps, and problems, the Board found that the applicant fabricated his non-refoulement claim [111].  In any event, internal relocation was a viable option for the applicant [119]-[124].

11.For the above reasons, the Board rejected the applicant’s claim and dismissed his appeal.

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

12.The applicant has filed Form 86 dated 29 April 2019 for leave to apply for judicial review of the Board’s Decision.

13.His reasons in support of the application are set out below. He referred to the Director’s Decision and the Board’s Decision. Since he cannot apply for judicial review against the Director’s Decision after the Board had dealt with his appeal, I shall consider the Board’s Decision only.

(1)  The Board’s Decision is wrong because his right to life is not protected.

(2)  The Board had failed to take into consideration the issue of state acquiescence in his case.

(3)  The Board had cherry picked those country of origin information against his case.

(4)  The Board had not considered the corruption and incompetency of the administration of his country.

(5)  The Board had not attained high standards of fairness.

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. He has given no explanation for his delay and his application can be dismissed for this reason 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. Before the Court, the applicant confirmed that the hearing before the Board in the Lai Chi Kok reception room was fair. But he needs some time to get the documentary evidence.

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.As to the grounds in paragraph 13, they do not advance the applicant’s application. They are bare assertions of his opinions without evidence in support. The Court of Appeal in Salim Ahmed alias MD Salim [2020] HKCA 244 held:

“20. … … general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case: Re Mizan Sikder [2019] HKCA 20 and Ibrahim v Simon Russell [2019] HKCA 1327.” See also Re Haider Khalil [2021] HKCA 223 [16].”

19.There is no valid reason to challenge the Board’s Decision.

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

CONCLUSION

21.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 11^th day of September 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