CHIRAGKUMAR RAJUBHAI PATEL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 244/2022

[2022] HKCFI 2630

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 244 of 2022

Application for Leave to Apply for Judicial Review

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

Following:

	consideration of the documents only;            or
	consideration of the documents and the Applicant being absent in open court;

1.  Extension of time to apply for leave to apply for Judicial Review be refused; and

2.  Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 22 April 2022 for leave to apply for judicial review (the “leave application”) of the decisions of the Torture Claims Appeal Board/the Non-Refoulement Claims Petition Office (the “Board”) dated 19 October 2015 and 7 December 2018 (respectively the “First Decision” and “Second Decision”) affirming respectively the decision of the Director of Immigration (the “Director”) in his notice of decision dated 4 July 2014 (the “First Notice”) and his notice of further decision dated 30 November 2016 (the “Second Notice”).

2.  Under Order 53, rule 4(1) of the Rules of the High Court, an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when the grounds for application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.  As the decisions sought to be reviewed were made on 19 October 2015 and 7 December 2018 and the application for leave to apply for judicial review was filed on 22 April 2022, they were respectively six years and three months and three years and one month out of time.  The Applicant has to obtain leave to appeal out of time before making the present application.

3.  In his Form 86, the Applicant asked for an oral hearing of the leave application if leave to apply is not granted on paper.  Directions, including filing of submissions, were given to him by letter dated 25 May 2022 posted to his address as stated in his Form 86 a month ago, which was Castle Peak Bay Immigration Centre.  The letter was returned as the Applicant had been discharged.  Enquiries with the Immigration Department revealed his new address in Yuen Long.  The directions were re-sent to him at the Yuen Long address on 6 June 2022.  He did not respond.  Notice of hearing on 26 July 2022 was also sent to him at that address on 11 July 2022.  He did not appear at the scheduled hearing.  Having considered the nature of the application, the issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate that the application be determined on paper without an oral hearing.

The background

4.  The Applicant is an Indian national, now aged 34.   He entered Hong Kong on 7 November 2009 illegally and surrendered to the authorities on the same day.  On 9 November 2009, he raised a non-refoulement claim.

5.  In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4].  The Director rejected his claims under Torture Risk, BOR 3 Risk and Persecution Risk by the First Notice.  Then, the Director invited the Applicant to submit additional information, if any, which he considered relevant to his claims on all applicable grounds, specifically including BOR 2 Risk ground, in case he had omitted them due to any misunderstanding.  Having reassessed his entitlement in the light of the further information submitted, the Director rejected his claim under BOR 2 Risk ground by his Second Notice.

6.  The Applicant appealed to the Board against the two Notices.  His appeal against the First Notice and Second Notice were dismissed by the Board by its First Decision dated 19 October 2015 and its Second Decision dated 7 December 2018, respectively.  On 22 April 2022 the Applicant applied for leave to apply for judicial review of the two Decisions. 

Applicable legal principles

7.  A delay of three months in making an application for judicial review is usually considered to be an undue delay.   To obtain extension of time for making an application, the court takes into account (i) the length of the delay; (ii) the explanation for the delay; (iii) merits in the substantive application; (iv) the balance of prejudice to the applicant and the proposed respondent if extension of time is granted; and (v) whether the application raises questions of general public importance which are likely to have to be resolved by the courts in any event: see AW and Director of Immigration[5].

8.  Merits is usually a very important factor.  Where the delay is not very substantial, it is usually the determinant factor.  But it was also held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung[6] that where an applicant is many months out of time, leave may be refused “however strong the complaint might otherwise be”.  The delay in this case is so substantial that leave may be refused on this ground alone.

9.  In considering the merits of the intended appeal, it must be borne in mind that the role of the court in judicial review is not to re-assess the non-refoulement claim afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[7].

The Applicant’s case

10.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer.    In gist, he claimed that he would be harmed by members of the Congress Party (“CP”) upon his return to India because he used to work for the antagonising Bharatiya Janata Party (“BJP”).

11.  The Applicant was born in Gujarat, India.  He is single and his family were living in India.  He left school after completing the 9^th grade and he has worked as a machine operator for two years.

12.  He started working for BJP in 2005.  He did not have any position within BJP and he only served as a supporter.  He put up banners and posters in Gujarat for BJP and he received 400 Indian rupees for every vote people cast for the party.  He alleged that CP was the ruling party in Gujarat from 2005 to 2007 and they constantly caused him trouble for supporting BJP.

13.  One day after an election in 2007, around ten to twelve members or supporters of CP attacked him and other supporters of BJP (including a person known as Munesh, who had similar duties as the Applicant) with wooden sticks.  They accused the Applicant and his fellow BJP supporters of going near the office of CP to harass women.  The Applicant escaped.  He did not seek medical attention for the bruises he suffered from the attack.  He did not report the attack to the police because he knew the police supported CP which was the ruling party at the time.

14.  Then the Applicant went to Haryana to work as a machine operator.  He returned in May or June 2009.  About nine days after his return, two or three members or supporters of CP went to his home with a policeman.  The Applicant was not at his home at that time but his father answered the door.  His father was told that the CP supporters had some problems with the Applicant but they did not give any details.  They asked for the Applicant’s whereabouts and his father only said he had gone out.

15.  About five days later, the same group of CP supporters and policeman came to his home again.  The Applicant was not at home.  They told his father that the Applicant had beaten a boy but they did not provide any details.  Then they left.  The Applicant did not heed his father’s advice to go to the police station to find out what had happened, because he believed the police would help CP and frame him.  Instead, he went to stay with his friend in Gujarat for two to three weeks.  During that time, his father told him that Munesh was murdered.  The Applicant feared that he would suffer a similar fate.  So, he fled to Hong Kong. 

The finding of the Board in the First Decision

16.  The Board did not find it necessary to hold a hearing for his appeal and proceeded to determine the appeal on the basis that the events alleged by the Applicant were true.  The Board held that the alleged murder of Munesh was based on hearsay and did not give it any weight.

17.  The Board held that there was no evidence to show that the supporters of CP acted with the authorities of the state or that the Indian police would fail to provide any protection to him, as the Applicant believed.  The Board found it was the Applicant’s own decision not to seek any police protection.  The fact that he was able to leave India with his own passport showed that he was not of interest to the authorities.

18.  The Board further noted that the BJP won the State Election in Gujarat in 2007 and 2012 and the General Election in 2014.  BJP was also the ruling party in Gujarat at the time of the Board’s Decision on 19 October 2015.  The Board therefore considered the influence of CP which the Applicant feared was no longer a live issue.

19.  On the basis of credible Country of Origin Information (“COI”), the Board found that state protection of an adequate standard was available to the Applicant.  From the fact that he was able to live in Haryana for two years without trouble, the Board found that internal relocation to other areas in India was a viable option to avoid the feared harm and risk.  It therefore dismissed his appeal based on BOR3 Risk, Torture Risk and Persecution Risk grounds in its First Decision.

The finding of the Board in the Second Decision

20.  The Applicant provided additional information to the Director in support of his claim based on BOR2 Risk. The Director dismissed his claim in his Second Notice.  The Applicant appealed.  The Board scheduled an oral hearing for the appeal, but the Applicant did not turn up.  It issued a notice to the Applicant informing him of its intention to determine his appeal on paper unless he explained his absence within seven days of service of the notice on him.  The Applicant did not respond.  Then the Board proceeded to determine his appeal on paper.

21.  The further information provided by the Applicant is that some months prior to September or October 2016, he learned from his friend that a CP supporter named Hasmukh had been to his house with eight or nine people looking for him.  When the Applicant’s family members refused to disclose his whereabouts, Hasmukh’s group attacked them. His father was stabbed with a knife while his mother was hurt on her head. They were taken to hospital.  His family members made a report to the police but the police did not take any action.

22.  The Board noted that the Applicant only heard about the attack from his friend but did nothing to find out from his family about the attack.  The information about the attack was just hearsay.  The Applicant did not know Hashmukh’s position in CP and the reason why Hashmukh was looking for him.  He was told by his mother that Hashmukh’s daughter went missing when the Applicant left for Hong Kong.  The Applicant suspected that was the reason why Hashmukh was looking for him.

23.  The Board found there was no evidence to show that the supporters or members of CP had any adverse interest on the Applicant.  It found there was nothing to indicate that Hashmukh intended to cause him serious bodily harm.  On the basis of authoritative and credible COI, including a news article relied on by the Applicant about inadequacy of the Indian judicial system, the Board considered that adequate state protection would be available to the Applicant, if Hashmukh intended to harm him. 

24.  For the above reasons, the Board found the Applicant had failed to establish a personal and real risk of his absolute and non-derogable rights under BOR 2 being violated upon his return to India.  It therefore dismissed his appeal based on BOR2 Risk.

Length of delay and explanation for the delay

25.  The delay is extremely inordinate, being six years and three months in respect of the First Decision and three years and one month in respect of the Second Decision.  The Applicant gave no explanation for the delay.  Such inordinate delay reflects an absence of any prospect of success in the application and abuse of proceedings.  On this ground alone, no extension of time will be allowed.  His leave application may be dismissed forthwith.  Nevertheless, as he has filed a list of grounds of application, these grounds will be dealt with very briefly for what they are worth.

Grounds of the intended application and merits

26.  First, the Applicant argued that he believed the Decisions were not reasonable.  He gave no particulars.  The Court would deal with this in its overall scrutiny of the Decision.

27.  Second, he argued that the Director had failed to give proper weight to the presence of state acquiescence and that he was tortured at the behest of state law enforcement agencies as well as those in the high ups of political circles.  Members of the ruling party are not to be equated as state agents nor should their acts be treated as executed with the consent and connivance of the state.  There was some hearsay evidence of doubtful credibility about murder of a BJP member which the Board gave no weight to.  On the Applicant’s case, he was never tortured, let alone at the behest of state law enforcement agencies.  At the highest, a policeman together with some members or supporters of CP looked for him in relation to an alleged assault of a boy by him.  But he did not go to the police station to find out what the complaint was and fled.  There is no substance in this ground.

28.  Third, he complained about unfairness by the Board placing too much weight on some COI and too little on others.  The Board did consider the COI provided by him as well.  As for the weight to be given to the COI, it is a matter for the Board having regard to the nature of information, the circumstances the information was obtained etc. It is a finding of fact solely within the province of the Board.

29.  Fourth, he complained that it was procedurally improper or unfair for the Board not to accept explanations given by him and unreasonably required him to respond to questions that he was not in a position to answer.  In substance, he was complaining about the Board’s finding of fact which is not permissible unless on the basis of error of law, procedural unfairness or irrationality.  He gave no particulars of the impropriety or unfairness.  There is no substance in this ground.

30.  Fifth, he complained that the Director, or the Board for that matter, failed to take “such argument into account”, but he gave no particulars of the argument.  It is impossible to follow up on his complaint.

31.  Sixth, he argued that the Board should have allowed his appeal instead of dismissing it.  This is a bald assertion without any grounds.

32.  In the absence of specific or proper grounds of application, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.  The essence of the Applicant’s complaint is that he disagreed with the finding of the Board that it is safe for him to return to India.  In effect, he is seeking to challenge the Board’s finding of fact that he would not face any real harm or risk if returned to India and that in any event state protection and internal relocation are viable options to prevent or avoid the risk.  

33.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the four applicable grounds under the USM for claiming non-refoulement protection, had properly referred to and correctly applied the applicable legal principles, including  the standard of proof and burden of proof, and quoted relevant precedents in support.  It clearly understood that its duty was to consider the Applicant’s claims afresh and not just whether to uphold or dismiss the Director’s decision in the Notice.  It correctly identified the factual and legal issues involved in the claims.  The Applicant’s claims are founded on his feared harm from members or supporters of CP.  The Board accepted his evidence and assessed his claims on the basis of the case as he asserted, but found the risk of harm was low and could be further avoided by state protection and internal relocation.    It was on that basis that the Board found that there was no factual basis to support the Applicants’ claims for non-refoulement protection under any of the four applicable grounds.  The Board’s Decisions are finding of fact which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  The Decision was utterly without fault.  There were no errors of law or procedural unfairness in its Decision.  The Board observed a very high standard of fairness.  Its Decision did satisfy the enhanced Wednesbury test.  Having considered his grounds for application, the Court was satisfied that the Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success or merits in the proposed judicial review. 

Prejudice to the Applicant vis-à-vis that to respondent if an extension of time is refused or granted and question of general public importance

34.  As there is no merit in the intended judicial review, the Applicant would suffer no prejudice if extension of time is refused.  The prejudice to the intended respondent could be readily inferred.  The intended judicial review does not raise any question of general public importance.

Conclusion

35.  None of the five considerations relevant to the grant of extension of time is in favour of the Applicant.  The Applicant seriously abused the non-refoulement system.  He did not attend the appeal before the Board on one occasion and gave no explanation.  He defaulted the hearing of this leave application.  He has been wasting public and judicial resources.  His conduct and his delay in taking out this leave application indicates he had no genuine intention to pursue his claims and he has no genuine claims.  By reason of the extremely inordinate delay and the total lack of merits in the intended judicial review, no extension of time should be granted.  Even if he is allowed to proceed, his application has no prospect of success.  For all these reasons, his application for extension of time to apply and his application to apply for leave to apply for judicial review are refused.

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

[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[3] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[5] CACV 63/2015 (unreported) 3 November 2015

[6] (2007) 10 HKCFAR 676 at 693B to C, per Litton NPJ

[7] [2018] HKCA 524 at para 14(1)