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

HCAL 1154/2019

[2023] HKCFI 2917

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1154 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 dated 7 December 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). The application filed on 30 April 2019 is late. This issue will be dealt with below.

2.The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with his application on paper.

The applicant

3.The applicant is a national of India. He last entered Hong Kong illegally on 29 July 2016 and surrendered to the Immigration Department on 1 August 2016. On 20 October 2016, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by members of the Shiromani Akali Dal (“SAD”) because he switched from SAD to join the Aam Aadmi Party (“AAP”).

4.According to the applicant, he joined the SAD in 2007 under his family’s influence. In around 2014, he decided to join the AAP as he admired the party’s ideology. He was involved in promoting the AAP. From 2014 to early 2015, there were several incidents that arouse the applicant’s fear. In seven incidents, the applicant was threatened by the SAD members. They asked him and his friends to switch back to the SAD. The applicant was posed with death threats and assaulted once. His two friends were also attacked by the SAD members. Out of fear, the applicant escaped and eventually fled to Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 10 January 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

5.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”).

6.By way of the Director’s Decision, the Director dismissed the applicant’s claim. In elaboration, the Director found that (i) the past events indicated that the level of risk of harm was low [13]-[16]; (ii) state protection would be available to him [17]-[19]; and (iii) internal relocation was a viable option [20]-[21].

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board. The oral hearing for his appeal was scheduled on 20 August 2018. However, the applicant was absent from the oral hearing. The Board was unable to reach the applicant on the date of the hearing despite repeated telephone calls prior and on the date of the hearing. A letter was therefore sent to the applicant requesting him to give reasons for his absence within 7 days of the said letter. The applicant failed to reply [44]. As a result, the Board proceeded to consider his appeal on the available information [45].

8.Having considered the evidence, the Board found that the injuries sustained by the applicant failed to attain a minimum level of severity [46]; that the allegations in relation to his friends’ sufferings lacked documentary evidence [47]-[48]; that the SAD members were not public officials or acting in the public capacities [49]; that the country of origin information showed that the AAP was quite successful in the recent elections and the police should not ignore any complaint of assaults against the applicant in his areas should it happen again [52]; that state protection and internal relocation were both available options to the applicant [60]-[65].

9.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

10.The applicant has filed Form 86 dated 30 April 2019 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, the applicant said he did not have the documents, not until after his release. Attached to Form 86 are also his grounds:

a.  the Board’s Decision is wrong as it did not take into account the right to life issue;

b.  the issue of state acquiescence was not take into consideration;

c.  the Board placed too much weight on the COI without considering sufficiently his personal background and experience;

d.  the Board failed to give weight to the argument, that is to say, the Indian government is corrupt and incompetent;

e.  the Board’s Decision is Wednesbury unreasonable;

f.  the Board was unreasonable to respond to questions that were not answerable by the applicant; and

g.  the Board’s Decision is irrational.

DISCUSSION

12.As mentioned in paragraph 1, the applicant’s application is late. The Court has to consider the length of the delay, the reasons for the delay, the prospect of the intended application and the prejudice to the putative respondent if extension of time is granted. Also, the Court should not grant extension for a hopeless application. See AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 and Re Adumekwe Rowland Ejike [2019] HKCA 702, §19. The deadline for her to file Form 86 is 7 March 2019. The delay is more than one and a half month. The applicant has not explained why she was late. I shall, nevertheless, first consider the merit of the applicant’s case.

13.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).

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

15.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.”

16.As the applicant was absent before the Board despite due notice under the Ordinance had been given to him by the Board, the Board was right to deal with his appeal on the evidence before it. For the reasons given in paragraph 8, supra, the Board found that he was unable to establish his claim and dismissed his appeal.

17.Those grounds in paragraph 11 do not assist the applicant. Ground (6) is clearly copied from other cases as he had not attended the Board’s hearing. the other grounds are his own personal opinions without any evidence in support.

18.I find that the applicant has not been able to raise any valid reason to challenge the Board’s Decision.

19.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.

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 for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 1^st day of December 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