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

HCAL 1212/2019

[2023] HKCFI 2718

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1212 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.  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 allegedly dated 5 July 2018, but upon enquiry with the TCAB, should be 8 June 2016 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”). His application filed on 6 May 2019 is late. 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, I shall deal with his application on paper.

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 as a visitor on 22 March 2007 and was permitted to stay until 5 April 2007. He did not depart and had overstayed since 6 April 2007. On 5 July 2007, he was arrested by the police for several criminal offences. On 19 March 2008, he lodged a non-refoulement claim. Upon the commencement of the unified screening mechanism, his non-refoulement claim was assessed on all applicable grounds. The applicant claimed that, if refouled, he would be harmed or killed by his wife’s cousins, namely, Jagah Singh and Sherry Singh, due to a family dispute.

5.According to the applicant, his family were supporters of Indian National Congress Party (“INCP”) whilst his wife and her cousins belonged to the Sharonmani Akali Dal Party (“SADP”). Sherry was the head of the village committee and Jagah was a member therein. In 2005, the applicant constantly had disputes with his wife about his wife’s decision to transfer her land to her cousins. The applicant, her legal husband, was entitled to all the properties of his wife. During the fights, the applicant would assault his wife. In 2006, Jagah and Sherry started to seek revenges for his wife. The applicant was able to avoid them and they also did not assault the applicant’s parents. In February 2007, one day, the cousins were able to catch the applicant at his home. They assaulted him with wooden sticks. While the applicant reported the incident to the village head, they were told to report to the Mehna police station. Nevertheless, there was no further action taken by the police. 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 26 January 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. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [12]-[18]; (ii) state protection would be available to him [19]-[20]; and (iii) internal relocation was a viable option [21]-[28].

8.For reasons set out at the Notice of Further Decision dated 3 February 2017, the Director also found that the applicant’s right to life would not be violated and thus dismissed his claim on the ground of BOR 2 risk (the “Director’s Second Decision”).

The Board’s Decision

9.The applicant only appealed the Director’s First Decision to the Board. On 3 December 2015, the Board conducted an oral hearing for his appeal, during which he testified [6].

10.The Board considered the applicant’s claim [14]-[29]. The Board proceeded on the basis that the applicant’s version of events was true and, taking the applicant’s claim to the highest, his evidence was that he was assaulted once by his wife’s cousin who took revenge for his wife who was physical abused by him on two or three occasions [31]. The other claimed threats from Jagah or Sherry were based on hearsay information [32]. Further, the Board considered the applicant’s claimed lack of state protection and unavailability of internal relocation to be mere speculations [33].

11.In addition, the Board found that the applicant did not sustain serious injuries from the assault [35]; that there was no evidence of party or state involvements [36]; that the alleged threats had no weights [37].

12.In these premises, the Board concluded that the applicant’s claimed further risk of harm upon refoulement was unsubstantiated and rejected his claim. His appeal was therefore dismissed.

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

13.The applicant has filed Form 86 dated 6 May 2019 for leave to apply for judicial review of the Board’s Decision.

14.In his affirmation in support of this application, he said that his life is still in danger in India.

DISCUSSION

15.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 8 September 2016. The delay is about 2 years and 7 months. He has given no explanation for his delay and his application can be dismissed on this basis alone. Nevertheless, I shall first consider the merits of the applicant’s case.

16.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).

17.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

18.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.”

19.The ground raised in paragraph 14 by the applicant is not valid to challenge the Board’s Decision.

20.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.

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

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 7^th day of November 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