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HCAL 941/2019
[2022] HKCFI 3563
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 941 of 2019
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BETWEEN
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Ashok Kumar |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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and |
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge K.W. Lung:
1. Extension of time for the Applicant to apply for leave to apply for Judicial Review be refused; and
2. The application for leave to apply for Judicial Review be dismissed.
Observations for the Applicant:
THE APPLICATION
1. The applicant applies for leave to apply for judicial review of the Decision dated 2 November 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). His application filed on 8 April 2019 is late.[1] I shall deal with this issue below.
2. The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), a date was fixed for him to appear before Court on 21 September 2022. However, he was absent without prior notice to the Court. His application is therefore dealt with on paper.
3. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.
The applicant
4. The applicant is a national of India. He entered Hong Kong illegally on 20 August 2015 and was arrested by the police on the same day. On 22 August 2015, 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 Shriromani Akali Dal Party (“SAD”) because of his support for the Congress Party (“CP”).
5. According to the applicant, he had been an active supporter for CP since 2002. In around 2013, he was asked by the village leader of CP, whose name he had forgotten, to work as an informant and to collect information about the activities of the SAD members. However, Gurpal Singh, the leader of the SAD in Iserheri village found out about the applicant’s activities. Gurpal threatened him. Yet, the applicant ignored the threats and continued with his work. In June or July 2015, the applicant escaped from an assault from five or six strangers who he believed to be sent by Gurpal. Upon the advice of his family and friends, the applicant fled to Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 14 December 2017 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 for the level of risk of harm upon his refoulement was assessed to be low. 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]; (ii) state protection would be available to him [13]-[16]; and (iii) internal relocation was a viable alternative [17]-[23].
The Board’s Decision
8. The applicant appealed the Director’s Decision to the Board. The oral hearing before the Board was scheduled to be on 2 August 2018. However, the applicant did not appear at the hearing nor did he provide any explanation for his absence despite the request sent by the Board. As a result, the Board proceeded to determine his appeal on the available evidence [10].
9. The Board recapped the applicant’s claim and his evidence before the Director [26]-[34]. It proceeded to consider the credibility of the applicant’s claim and identified several matters that raised concerns. In particular, it noted that, despite the applicant claimed to be an active supporter of the CP, he could not even recall the name of his own party leader [40]. It also found that the applicant failed to specify the purpose of the information he gathered and that he did not seek help from his party leader if the assigned work caused him troubles [41]. The Board further found that the applicant failed to explain how he could escape from the assault from five to six strangers [42] and that he failed to substantiate a future risk of harm if no harms were inflicted on him in the past [43].
10. Since the applicant failed to appear before the hearing and the above concerns were not clarified by him, the Board concluded that he did not face any real risk of harm from the claimed SAD members and thus dismissed his appeal.
Application for leave to apply for judicial review of the Board’s Decision
11. The applicant has filed Form 86 dated 8 April 2019 for leave to apply for judicial review of the Board’s Decision.
12. In his affirmation in support of his application and the grounds attached to Form 86, the applicant set out the grounds below. He referred to the Director. I shall take it as referring to the Board and the Board’s Decision.
(1) The Board’s Decision is wrong and unfair as it did not consider the issue of his right to life.
(2) He was tortured at the behest of the state law enforcement agencies as well as those in the high up political circles. The Board’s Decision did not take into consideration state acquiescence.
(3) The Board had not given due weight to the Country of Origin Information in favour of his case.
(4) The Board did not take into account the corruption and incompetency of the administration in Pakistan [India], which is very serious.
(5) The Board has not attained the high standard of fairness and is therefore unreasonable.
DISCUSSION
13. 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 2 February 2019. The delay is about 2 months. He has given no explanation for his delay and his application can be dismissed on this basis alone. However, I shall first consider the merits of the applicant’s case.
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 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).
15. The Court will bear in mind that the Board’s Decision 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. As to the grounds in paragraph 12 above, there is no evidence that he was tortured by the enforcement agencies or the political circles. The other grounds are only assertions or opinions without any evidence in support.
18. The Board had assessed his evidence and, for the reasons above, found that he did not face any real risk of harm from the claimed SAD members, which is the fact of his case.
19. There is no valid reason 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. 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 23rd day of November 2022
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(Chung Lai Fan, Christine)
for Registrar, High Court
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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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 23 November 2022
Ashok Kumar
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 23 November 2022
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 9636/17/12/303/IN1811
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 3526/17 (Formerly RBCZ 12948/15) (T2S32)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Delay in applying for relief (O. 53, r. 4)
(1) An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made. (L.N. 356 of 1988)
(2) Where the relief sought is an order of certiorari in respect of any judgment, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgment, order, conviction or proceeding.
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