MANPREET SINGH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1297/2023

[2023] HKCFI 3265

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1297 of 2023

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;

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.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 20 August 2021 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 is late. This issue will be dealt with below.

2.  The applicant asked for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, he appeared before the Court on 27 September 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, aged 28, is a national of India.  He sneaked into Hong Kong from China on 17 July 2016 and surrendered to the Immigration Department on 20 July 2016. On 26 July 2016, he lodged his non-refoulement claim on the ground that, upon refouled, he would be harmed or killed by his uncle Kashmir Singh because of a land dispute.

5.   In short, the applicant’s grandfather, before his death, transferred his land, which is made up of agricultural land and residential land to the applicant’s father and his uncle. His father was given the residential land and part of the agricultural land whereas his uncle was given the remaining part of the agricultural land only. After his grandfather had passed away, his uncle asked his father to transfer his residential land and part of his agricultural land to him. His father refused whereupon his uncle, together with his son and about 20 people, went to his family to beat his father, his mother and him. They had done this on 3 separate occasions. On each occasion, the applicant was beaten with hockey sticks, baseball bat and wooden sticks. He was injured and had to receive treatment in hospital. But he did not report the matter to police because he knew that his uncle was a retired policeman and connected with the political party, Congress Party. His uncle had also threatened to kill him. His father arranged him to leave India before he finished his university course. He considered that his uncle had such connection that he would be located if he returned to India.Details of his claim are set out at paragraph 8 of the Notice of Decision dated 7 December 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 as it was unsubstantiated.  In elaboration, the Director found that: (i) the low intensity and frequency of ill-treatment from his uncle in the past was indicative of a low future risk of harm upon his return to India [14]; (ii) there was nothing to suggest that his perceived risk of harm from his uncle was real or imminent [15]; (iii) his alleged risk was assessed to be localized and there was no evidence that his uncle had the support or acquiescence from the entire Congress Party or the police [16]; (iv) state protection was available [17] – [18]; and (v) internal relocation was also available and reasonable [19] - [25].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board.  On 20 July 2021, the Board conducted an oral hearing by way of ROVS assisted by an interpreter.

9.  Having considered the applicant’s evidence, the Board accepted that there was a dispute over the land between his uncle and his father and he was attacked by his uncle and was injured and that he had received threats from his uncle from time to time.  However, the Board did not accept that his uncle would harm or kill him if he returned to India; that he would face risk throughout India; that he had suffered injuries to the required severity; and that the state of India was unwilling to help him for a Convention reason [40]-[41]

10.  For the above reasons, the Board rejected the applicant’s appeal and confirmed the Director’s Decision.

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

11.   The applicant has filed Form 86 dated 27 July 2023 for leave to apply for judicial review of the Board’s Decision.

12.  The applicant has raised the following grounds in support of his application:

(1)   the Board had not given due consideration to his case;

(2)   the Board had failed to assess his situation;

(3)   the internal relocation as suggested by the immigration officer is unduly harsh.

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 20 November 2021.  The delay is more than 1 year and 8 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 his 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.  Before me, the applicant said that he is late because he has been detained and he is depressed.  He can contact his family for documents.

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.  The Board had found that there was no evidence to show that the applicant will be subject to the risks as claimed if he returns to his country. His reasons in paragraph 12 are only his bare assertions or personal opinions without any evidence in support.  They are not valid grounds to challenge the Board’s Decision.  Those reasons in paragraph 12 do not assist him in his application.

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

CONCLUSION

19.  I refuse to extend time to the applicant to apply for leave for judicial review of the Board’s Decision.  Accordingly, I dismiss his application.

 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