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

HCAL 426/2021

[2023] HKCFI 2626

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 426 of 2021

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge To:

1.  Extension of time to apply for leave for Judicial Review be refused; and

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

Observations for the Applicant:

Introduction

1.This is the Applicant’s application by Form 86 filed on 24 March 2021 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/ Non-Refoulement Claims Petition Office (the “Board”) dated 18 June 2020 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 10 May 2018 (the “Notice”) rejecting his application for non-refoulement protection.

2.The leave application was filed more than nine months after the date of the Decision sought to be reviewed. Pursuant to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, the application was late by more than six months even after taking into account the summer vacation.

3.In AW and Director of Immigration and William Lam[1], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.

4.The delay is substantial. The Applicant has not given any explanation for the delay in the Form 86 or his supporting affirmation dated 24 March 2021. Usually, merits in the substantive application carry much weight in a decision whether to allow extension of time for filing the leave application. For expediency reasons, the question of extension of time will be consider together with merits of the leave application.

5.The Applicant is an Indian national. He entered Hong Kong on 1 March 2016 as a visitor and was permitted to remain until 15 March 2016. He overstayed and surrendered to the authorities on 17 March 2016. On 11 August 2016, he raised a non-refoulement claim.

6.In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[2]; BOR 3 Risk[3]; Persecution Risk[4]; and BOR 2 Risk[5]. His claim was dismissed by the Director’s Notice. His appeal against the Notice was dismissed by the Decision of the Board. He now applies for leave to apply for judicial review of that Decision.

7.The Applicant did not request an oral hearing. Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered that the application may be justly determined on paper without an oral hearing.

The Applicant’s case

8.The following account of the Applicant’s case is mainly based on the information in the Director’s Notice, his written statements and record of his screening interview in the presence of his lawyer. In gist, he claimed that he would be harmed by supporters of two rival political parties, namely the Shiromani Akali Dal (“SAD”) and Bharatiya Janata Party (“BJP”), upon his return to India.

9.The Applicant, now aged 36, was born in a village in Punjab, India. He has worked as an electrician and a taxi driver for a total of about six years. His father was a member of Aam Aadmi Party (“AAP”) and represented AAP in their village. Under his father’s influence, he joined AAP as an ordinary member after he returned from Saudi Arabia towards the end of 2014. He held no position in AAP other than helping his father. This support garnered the attention of the supporters of SAD and BJP who started harassing him since the end of 2015.

10.The first incident occurred in December 2015 when three to four SAD supporters went to the Applicant’s house to persuade him to join their party. They left without inflicting any physical harm.

11.Approximately a week later, the Applicant was approached by five to seven supporters from either BJP or SAD, who threatened to harm him if he did not leave AAP and pushed him to the ground. Alarmed passers-by prevented the assault from escalating and no severe injuries were sustained.

12.In the third incident seven supporters of BJP or SAD intercepted the Applicant in the street. They cursed at him. Then three of them attacked him, causing bruises on his body. They threatened to kill him next time.

13.In December 2015, the Applicant was surrounded by ten to twelve supporters of SAD or BJP. They violently assaulted him with wooden sticks, baseball bat or chopper, causing him to bleed and almost lost consciousness. The assailants were led by a man from his own village. That man threatened to ‘demolish’ his family if he did not cease his support for AAP. The Applicant was hospitalised for two days and received treatment including stitches. It took him another month to recuperate at home.

14.Fearing for his safety, the Applicant moved to Chandigarh in January 2016 to stay with his paternal aunt. When his family informed him that his enemies had discovered his whereabouts, he moved to Delhi where he stayed with a friend for a few days. His friend paid and made all necessary arrangements, including travel documents, for his flight to Hong Kong, arriving here on 1 March 2016.

15.The Applicant maintains regular contact with his family in India and they strongly advised against his returning to India due to the continued threats from SAD and BJP supporters. He did not seek help from the police in India because of his belief that they are biased towards SAD. Furthermore, he believes that internal relocation is not a viable option because SAD and BJP are in power and can find him out.

The finding of the Board

16.The Applicant testified before the Board. The Board found his account was incoherent and inconsistent with the statement of claim he gave to the Director.

17.He told the Board that he stayed and worked as a taxi driver in Chandigarh and Delhi since around July 2015 for six to seven months before he left India. This fact had never been mentioned to the Director. It is inconsistent with the time line of the third and fourth incidents described in Paragraphs 12 to 14 above. The inconsistencies had been fairly explained and put to him but he could not give any explanation. The Board came to the conclusion that the attacks which he told the Director took place at the end of 2015 could not have in fact taken place.

18.The Applicant said that his father had no problem with supporters of SAD or BJP. But, he could not explain why his father who held the position of representative of AAP in the village was not targeted by the rival parties, while he held no official position was. The Board considered his evidence inherently improbable and attached no credence to his claim. It found as a fact that the Applicant did not suffer any of the harassment or attack alleged by him.

19.The Board further found that even on the Applicant’s own case, the alleged threats were localised to the area within his home village; that he was able to leave the country without any obstacle; and that given his fit physical condition and working experience, there are no obstacles to his relocation other parts of India.

20.The Board found the Applicant had failed to establish the factual basis to support his claims for protection under any of the four applicable grounds under the USM. Applying the law applicable to the non-refoulement protection to what the Applicant was able to prove, the Board found he is not entitled to non-refoulement protection and dismissed his appeal against the Director’s Notice.

The legal principles applicable to judicial review

21.The function of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[6].

Grounds for judicial review

22.The Applicant did not put forward any grounds in his Form 86. In his supporting affirmation, he said he was not satisfied with the decision of the Board and he could not go back to his home country because his life is still in danger there. In effect, he is seeking to challenge the Board’s finding of fact that he had failed to prove that he would face real harm or real risk of harm if returned to India. For reasons as explained in the above paragraph, this is not permissible in an application for judicial review. In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.

Discussion

23.This application is in effect an appeal against the finding of fact by the Board dressed up as an application for judicial review. As mentioned earlier, the role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The Court in a judicial review will not interfere with the finding of fact by the decision maker save where such finding is the result of errors of law, procedural unfairness or irrationality.

24.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; and correctly identified the issues. The Board observed a very high standard of fairness. It was on that basis that the Board found there was no factual basis to support the Applicants’ claims for non-refoulement protection under any of the four applicable grounds. Basically, the Applicant failed to discharge his burden of proving his fears and risks. These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness, unreasonableness and irrationality. The Court could detect no error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The Decision is utterly without fault. For the above reasons, the Applicant’s grounds are not reasonably arguable. There is no realistic prospect of success in the proposed judicial review.

Conclusion

25.The leave application was filed more than six months out of time. The delay is substantial and unexplained. Had the Applicant been able to show merits in the leave application, the Court would have enquired from him about his explanation for the delay. As his proposed judicial review has no prospect of success, such an enquiry would be a futile exercise. Accordingly, extension of time to file the application to apply for judicial review and the leave application are refused.

Dated 10^th day of October 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