ROOP BASANT v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 828/2018

[2021] HKCFI 51

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 828 OF 2018

     Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  The applicant, born in 1991, is a national of India.  He arrived in Hong Kong on 25 March 2014 on the strength of his Indian passport and was permitted to remain until 8 April 2014 as a visitor.  He overstayed and remained in Hong Kong unlawfully.  On 13 May 2014, he was arrested by the police and referred to the Immigration Department for investigation.  He then lodged a non-refoulement claim to the Director of Immigration (“the Director”). He was subsequently released on recognizance.

2.  The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para [6] of the decision of the Director dated 22 July 2016. Put simply, the claim was based on the fear that, if refouled, the applicant would be harmed or even killed by the people of the ruling political party, Akali Dal Party (“ADP”) because he was a supporter of the Indian National Congress Party (“INC).  In 2012 he became a supporter of INC and campaigned for Pritam Singh of the INC in the village counsellor election.  The ADP candidate won in the election and became powerful in the village.  After the election the applicant was attacked by a group of people with baseball bats from the ADP.  To avoid the ADP people, he hid in another city living at his uncle’s home.  After around two months, he told Pritam Singh about his problem.  Pritam Singh told him that the police would not deal with his case and he had to be careful.  In March 2014, he left his country to avoid his enemy.  He did not encounter any problem with immigration officers or other Indian authorities when he departed his country.

3.  On 25 March 2014, he arrived in Hong Kong on the strength of his India passport and was permitted to remain as a visitor until 8 April 2014. He overstayed unlawfully and was arrested on 13 May 2014 by the police. He sought non-refoulement protection by written representation dated 15 May 2014 and was was subsequently released on recognizance.On 21 July 2014 the applicant was arrested for taking up unapproved employment and sentenced to 14 months’ imprisonment.  After his discharge he was released on recognizance.  On 25 June 2015 his non-refoulement claim was treated as having been withdrawn as he failed to return his completed non-refoulement claim form.  On 3 July 2015 he requested for reopening of his non-refoulement claim.  However, he failed to provide the requested information and it was decided that no further action would be taken on his claim on 4 September 2015.  On 22 January 2016 the applicant requested for re-opening of his non-refoulement claim again.  The Director allowed him to reopen his case on 6 April 2016 [7-11].

The Director’s Decisions

4.  By Notice of Decision dated 22 July 2016 (the first decision) and Notice of Further Decision dated 13 October 2017 (the second decision), the Director rejected the applicant’s non-refoulement claim on all applicable grounds.  The first decision covered torture risk^[1], BOR 3 risk^[2], and persecution risk^[3]. The second decision covered BOR 2 risk^[4]. 

5.  In his first decision, having taken into account all relevant circumstances, the Director found that there are no substantial grounds for believing that the perceived risk of harm of the applicant is real and foreseeable [14].  The low intensity and frequency of past ill-treatment from the people of ADP is indicative of the unlikelihood of future risk of harm upon his return to India [18].  There is no evidence that the ADP people continued to further escalate any harm to him and the people of ADP are not as powerful and influential as the applicant claimed [19].  Moreover, the Director found that state protection is available to the applicant and internal relocation is a viable option for him which further lowers or negates the perceived risk [20-21].

6.  In his second decision, the Director rejected the applicant’s claim in the absence of reply from him to the invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds including BOR 2 risk.  

7.  On 10 August 2016 the applicant lodged an appeal to the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) against the Director’s first decision by a Notice of Appeal/Petition (“notice of appeal”).

8.  The applicant did not appear to have filed any appeal against the Director’s second decision. By a letter dated 28 July 2020, the court asked the Board if the applicant had filed any appeal against the second decision of the Director.

9.  By a letter dated 31 July 2020, the Board confirmed to the court that the applicant had not filed any notice of appeal to the Board against the Director’s second decision.

The Board’s Decision

10.  Section 37ZS of the Immigration Ordinance requires that the notice of appeal must be filed within 14 days after notice of the Director’s decision has been given to an applicant unless late filing is allowed by the Board.  

11.  The Board observed that the time limit for filing of notice of appeal expired on 8 August 2016 but the applicant’s notice of appeal was only received on 10 August 2016 by the Board [7].  It further noted that in Section 5 of the notice of appeal for the reasons of late filing, the applicant only stated: “I am doing this appeal on time.”

12.  The adjudicator of the Board remarked that the appeal was “just some two days out of time”, the Board yet refused to accept the late filing of the notice of appeal.  It stated in its decision that if the time limit for filing an appeal is not complied with, the applicant is obliged to give reasons for non-compliance, accompanied by any documentary evidence in support of those reasons. The Board must then, taking into account only those reasons and supporting documentary evidence if any, decide whether or not to allow late filing. This will only be allowed where the Board is satisfied that, by reason of special circumstances, it would be unjust not to do so [10].  The applicant had not filed his notice of appeal within the prescribed period and had provided no reasons for such non-compliance [11]. There were no other relevant matters of fact within the Board’s knowledge amounting to special circumstances which would make it unjust not to allow the late filing of the notice of appeal [12].  Accordingly, the Board refused the application of the applicant made out of time.

Application for leave to apply for judicial review

13.  The applicant filed a Form 86 on 11 May 2018 for leave to apply for judicial review of the “Appeal Decision of Torture Claim Immigration Department Decision on USM claim dated 22 July 2016”.  He named both the “Immigration Department and Torture Claims Appeal Board” as the proposed respondents. It is to be noted that 22 July 2016 was in fact the date of the first decision of the Director, not the date of the decision of the Board.

14.  In the Form 86, the applicant stated that he has the right to have his claim assessed under BOR 2 and that he should be provided a legal representative and his life is in danger.  In the first paragraph of his affirmation in support, he stated that “This serves as a formal notification to your honourable court of my intention to file a judicial review of the decision of the Torture Claims Appeal Board (TCAB) and the Director of immigration (ImmD) of mt torture claim” (sic).

15.  He further said in the affirmation that according to the guidelines of the USM assessment, all claimants are to be given legal assistance free of charge.  Contrary to this rule, he had no legal assistance during and prior to the appeal process.  On BOR 2 risk he did not submit any submission due to lack of knowledge on the process and legal matters.  As he does not speak or write English, his inability to read and understand correspondence from the Immigration Department made it impossible for him to update the Immigration Department and his current situation.

16.  The applicant made his written submission by an undated letter received by the court on 30 June 2020, he complained that “Because you just treat my Non-refoulement case with our country web site information.  This is not the right way to justify or judge my case.”

17.  By a letter dated 27 August 2020, the court invited the applicant, amongst other thing, to provide the reasons for his delay in his application for judicial review.

18.  In his letter dated 25 September 2020, he explained his reason of the late application for judicial review was that he did not get any letter from the Board “on time”.  He was only informed in the first week of May 2018 by an immigration officer that his appeal had been refused by the Board.  He asked for an oral hearing.  He further gave 11 paragraphs of “Grounds on which relief is sought”, and repeated that he will be killed as his enemy is still powerful in India looking for him.  

19.  The applicant’s application is confusing as to which decisions are under challenge. I will treat his application as one against both decisions of the Director and the decision of the Board.

20.  A hearing was scheduled for the applicant on 21 October 2020. The applicant attended the hearing in person.

Discussion

21.  The relevant principles regarding non-refoulement claims have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  In particular, the role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence, country of origin information, 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, procedural unfairness or irrationality in the decision of the Board.

Application out of time

22.  It must be pointed out first that the applicant’s intended application for judicial review was made out of time.  Order 53, rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review 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.  In considering whether to extend time, the court will have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: Re Thomas Lai [2014] 6 HKC 1; AW v Director of Immigration [2016] 2 HKC 393.

23.  The principles have been further explained by the Court of Final Appeal in the recent case of H v Director of Immigration and AH v Director of Immigration FACV 1 and 2 of 2020, at para 37.  

24.  As against the decision of the Board, even counting only from the 3-month time limit which ended on 19 December 2016, the application was late by about 17 months.  The application against the two decisions of the Director would be much longer.  The delay in the application as against all these decisions was very substantial and excessive.

25.  The applicant explained in his letter dated 25 September 2020 that he did not receive the decision of the Board and was only aware of it when he was informed by an immigration officer in the first week of May 2018.  At the hearing in court, when questioned how often he reported to the Immigration Department, he said he did it every 1 ½ months.  He then explained that he had walking difficulties and was not in good health. He did not care about what they told him and only filed his application for judicial review when his condition got better.

26.  I find his explanations in court vague, evasive and inconsistent. I do not accept the explanations as credible. He should have already made inquiry with the Board or the Immigration Department about the result of his application at a reasonable time after he had filed his notice of appeal to the Board. Given he reported to the Department every 1 ½ months, it is entirely unconvincing that he would be unaware of the decision of the Board for 17 months and then suddenly informed of it by the Immigration Department in May 2018.  

27.  I cannot find any good reason for the unduly excessive delay in his application for judicial review.  The excessive delay and absence of good reason for extending the time alone would be sufficient reasons to refuse his application.

Merits of the intended application

28.  Nevertheless, I will also consider the merits of his case.

29.  In his first decision, the Director gave the applicant’s account of primary facts and events the most favourable interpretation.  The Director did not take issue with the applicant’s asserted primary facts and events.  He however disagreed with the applicant on the assessment of risk flowing from such events.  Taking into account all the relevant circumstances, he rejected the applicant’s claim based on its assessment of the risk of harm as well as its findings on the availability of state protection and viability of internal relocation.  The assessments were plainly within the province of the Director.  I do not see any errors or unreasonableness in the evaluation of risk.

30.  Nor do I find anything amiss in the Director’s analysis on its determination of the BOR 2 risk in his second decision.  The applicant complained that the Director went ahead to give a decision on BOR 2 risk without considering his submission.  The fact is that he had been invited to provide any additional information, if any, on all applicable grounds including BOR 2 risk and he failed to do so.  There is plainly no merit in the complaint.

31.  In any event, on the facts of the case, I cannot see any additional basis for advancing a case on such risk, independent from the BOR 3 risk, the persecution risk, and the torture risk.  

32.  I do not find any reasonably arguable basis to challenge the findings of the Director’s decisions.

33.  In respect of the Board’s decision, the decision only dealt with the appeal against the first decision of the Board. It was an application out of time.

34.  Pursuant to section 37ZT (2) of the Immigration Ordinance, the Board proceeded to consider the applicant’s late filing of his notice of appeal by way of a preliminary decision without a hearing, and refused to allow the late filing on the grounds that the applicant had not filed his notice of appeal within the prescribed period and provided no reasons for such non-compliance.  The Board found that there are no other relevant matters of fact within its knowledge amounting to special circumstances which would make it unjust not to allow the late filing of the notice of appeal.

35.  A delay of just a few days cannot be regarded as a substantial delay. However, I agree with the Board that the applicant had provided no valid reasons for his late application.

36.  The applicant said in his notice of appeal that “I am doing this appeal (on) time”.  That statement appeared to suggest that the applicant believed he had filed his notice within the prescribed time limit.  However, at the hearing in court, he explained with excuses about his detention, sickness and surgery that he received as reasons for the delay which were not consistent with the explanation in his notice of appeal.  He then explained further that the reason given in the notice of appeal was written by his friend. Yet, the first decision of the Director was in fact delivered to the applicant’s lawyer (the Duty Lawyer Service). I find his explanations incredible and unacceptable.   

37.  I am conscious of the decision of the Court of Appeal in Re Qasim Ali [2019] HKCA 430, CACV 547/2018.  The Board needed to, under s 37ZT(2)(b) of the Ordinance, take account of the merits of the appeal (albeit on paper without a hearing) regardless of the procedural breaches or the lack of explanation therefor. In its decision, the Board did not demonstrate to have considered the merits of the applicant’s claim.  

38.  Nevertheless, for reasons given above. I find no merits in the applicant’s claim to afford any special circumstances to make it unjust not to allow late filing.

39.  Moreover, the applicant delayed in lodging the claim for protection after he came to Hong Kong.  He only lodged his claim for protection more than a month after he overstayed in Hong Kong and was arrested by the police.  Such conduct, although not determinative of the claim, was inconsistent with someone in genuine fear for one’s life and safety.  It adversely affected the credibility of the claim.

40.  Further, even if one gives the claimed account of events the most favourable interpretation, the alleged past ill-treatment or experience were of low intensity and frequency demonstrating no real risk of future harm.  It came nowhere near the level of severity required by law to provide him international protection.  The applicant was of a low rank position in his political party. There was no valid reason why the opposition party would target the applicant personally and still wish to pursue him after so many years.

41.  More importantly, any such risk of harm will be reduced by the availability of state protection and option of internal relocation found by the Director.

42.  The evidence in the present case can hardly establish that the applicant would be at real risk of being subjected to any type of ill-treatment or proscribed harm, if refouled.

43.  The applicant’s major complaint in this application for leave for judicial review relates to the lack of legal representation and language assistance being provided to him.  It is well established that the high standards of fairness do not demand interpretation service or legal representation being made available all the time to a non-refoulement claimant.

44.  Such assistances have been provided to the applicant through the Duty Lawyer Service when the non-refoulement claim form was filled out and during the interview with the immigration officer in the first-tier screening.

45.  It is further noted that the application and affirmation in support as well as the non-refoulement claim form were either typed or written in English.  These indicate that the applicant was able to access to language assistance if needed. 

46.  I do not accept the assertion that the alleged lack of legal/ language assistance would render the process unfair.

47.  The applicant also appeared to be complaining that the Director only considered the country of origin information of the government website of his country.  The complaint has no merit.  The Director clearly referred to the domestic and international COI itemised in the appendix of his first decision dated 22 July 2016.

48.  For reasons stated in para 29 and 30 above, the complaint relating to lack of consideration of BOR 2 risk is totally without merit.

49.  The other complaints of the applicant are bare allegations without specific relevance or evidence in support which cannot amount to valid grounds for judicial review.

50.  In my judgment, all the grounds put forward by the applicant are not arguable and there is no prospect of success in the applicant’s intended application for judicial review. 

51.  I should also emphasize what the Court of Final Appeal stated at para 52 of Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676:

“It is worth emphasizing that the exercise of power by a judge of first instance under Order 53 r.3(1) is discretionary. Where an application is made many months after the time limit mentioned in r.4, or where the orders sought would lead to no practical benefit, the judge is entitled to refuse leave, however strong the complaint might otherwise be.”

52.  The present case is one of such cases. The applicant’s undue delay for 17 months is substantial and excessive, and his explanation for the delay is totally unacceptable.  His claim has no merit with no prospect of success.  It is not in the interests of justice to grant him extension of time to apply for judicial review.

53.  After the hearing in court, the applicant filed an affirmation on 12 December 2020 saying that “I want to withdraw my Judicial Review application. I want go back to my country…” For the reasons given above, instead of giving leave to withdraw his application, I refuse to give him leave for judicial review.

Disposition

54.  I refuse to extend the time, and dismiss the application, for leave to apply for judicial review.

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