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

HCAL 728/2017

[2020] HKCFI 785

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 728 of 2017

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

(1)      Extension of time for application for leave to apply for judicial review of the decision of Torture Claims Appeal Board dated 29 June 2017 be refused; and

(2)      Application for leave to apply for judicial review be dismissed.

IT IS FURTHER DIRECTED that:

(1)      If the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

(2)      When filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

(3)      The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

(4)      If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

(5)      Liberty to apply.

Observations for the Applicant:

THE APPLICATION

1.  The applicant is not legally represented and he did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Torture Claims Appeal Board (“the Board”). They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court (“RHC”), by letter, invited the applicant to appear before it in order to explain the above to them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant did not attend the hearing on 2 August 2019.

2.  I have identified the following defects in Form 86 for his application:

a.     he had not written any name as the respondent;

b.     he had left blank the column for the decision in respect of which relief is sought; and

c.     his application is out time for 7 days, the date of the Board’s Decision being 29 June 2017 and his Form 86 being dated 6 October 2017

3.  Pursuant to the powers under O.53, r.3(6), O.20, r.8 and O.53, r.4 RHC, I shall rectify the above irregularities by:

a.     the Board be added as the respondent (O.20, r.8);

b.     adding the relief of leave to apply for judicial review of the Board’s Decision dated 29 June 2017 (O.53, r.3(6)); and

c.     considering extending time for application for leave to apply for judicial review of the Board’s Decision.

4.  The Court of Appeal in AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015 held that the court has to take into consideration: (i) the length of the delay; (ii) explanation for the delay; (iii) merits of the substantive application; (iv) prejudice and (v) questions of general public importance [27(3)].

5.  Since the applicant was absent, there is no explanation from him for the delay. I shall therefore consider the merits of the substantive application before I determine whether I should extend time for this application.

The applicant

6.  The applicant is an Indian national. He came to Hong Kong on 2 April 2015 as a visitor and was permitted to stay for 14 days. He overstayed. On the first day of overstaying (17 April 2015) he surrendered himself to Police, and two days after arrest he lodged non-refoulement claim with the Immigration Department. 

7.  In support of his claim, he said that if refouled, he would be harmed or killed by the head of his village, Kamaljit Singh (“KS”) because he refused to join the Shiromani Akali Dal Party (“SAD”). KS had connection with the police in Punjab.

8.  He had set out five incidents where he was recruited by KS to join SAD and he was harassed or beaten up as he refused. In 2005, he was wrongly accused of having a fight with someone. Then, he was arrested by police for a charge of fighting. He was ultimately acquitted by court. In September 2012, he was assaulted by 4 masked people with bamboo sticks as they demanded him join SAD. He had sustained injury. He reported the assault to police, which did not help him. In May or June 2013, he was attacked by 3 or 4 men with hard object. They also punched him and kicked him, uttering death threat at the same time. He moved to live in his maternal uncle’s home for two years. Nothing happened. In March 2015, he returned home where he came across KS, who threatened to kill him. He came to Hong Kong.

The Director’s Decisions

9.  The Director considered his application in relation to the following risks:

a.     risk of torture under Part VIIC of the Immigration Ordinance, Cap 115, (“the Ordinance”) (“Torture risk”);

b.     Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (Risk of violation of the right to life) (“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”).

10.  By Notice of Decision dated 19 February 2016 and Notice of Further Decision dated 11 April 2017, collectively called (“the Director’s Decisions”), the Director refused his claim for the reason that his claim was not substantiated.

The Board’s Decision

11.  The applicant appealed to the Board against the Director’s Decisions, but he failed to attend a hearing before the Adjudicator on 3 April 2017. The Board had attempted to contact him by phone, but to no avail. It also sent him a letter requesting him to provide it with explanation for his absence. But the applicant did not reply. In accordance with section 15, Schedule 1A of the Ordinance, the Board considered his appeal in his absence on the papers.

12.  By Decision dated 29 June 2017 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decisions.

13.  The Board considered the evidence before him and, for the reasons set out in the Board’s Decision came to the conclusion below.

a.     It did not believe KS and his people were interested in locating him all over India as he was only a supporter of the Congress Party. Killing him would not increase supporters for KS and to locate someone in India of such a vast population and continent would cost much to KS. He could also relocate himself to live somewhere else in India [18].

b.     State protection would be available to the applicant [30].

c.     The applicant’s credibility was adversely affected the factors:

     i.     he did not take the first opportunity of seeking protection and did so after two weeks of overstaying, section 37ZD(1)(c ) of the Ordinance [33];

     ii.     he was dishonest because he overstayed [33]; and

     iii.     the conundrum why he should choose Hong Kong instead of other places in India and why he waited for two weeks before seeking protection from Police remained unsolved [35].

Application for leave to apply for judicial review

14.  He filed Form 86 for leave to apply for judicial review of the Board’s Decision. However, he is out of time because the Board’s Decision is 29 June 2017 and his filing of Form 86 is 6 October 2017, the deadline being 29 September 2017. I shall consider the merits of his case in order to determine time should be extended for him to file Form 86.

15.  In his affidavit, he said that he was unable to attend the hearing before the Board because he was being detained in CIC and he should have a hearing.

DISCUSSION

16.  The Board was entitled to consider the appeal on the papers only in the absence of the applicant in accordance with section 15, Schedule 1A of the Ordinance.

17.  The Board was wrong to say that the applicant did not take the first opportunity of seeking protection and did so after two weeks of overstaying because in paragraph 1 of its Decision, it said that the applicant surrendered himself to the Police on the first day of overstaying. But this error only affects the Board’s basis for disbelieving his evidence. I have to consider other issues as well.

18.  I also consider that the other factors of overstaying and the conundrum of choosing Hong Kong should not weigh in to discredit the applicant’s evidence because these two factors are equally applicable to all applicants for asylum, even for some who may have good grounds in support of their applications. To use these factors across the board may appear unfair to the applicant. Specific factors should be applied to each individual case.

19.  Other than that it did not believe KS was still interested in the applicant, the Board has not made clear in its Decision, because of those factors, whether it totally disbelieved the applicant’s evidence on the facts.

20.  In the circumstances, I shall put the applicant’s case at the highest, that is to say, the Board had accepted other facts as the applicant alleged.

21.  On this basis, the Board had considered that state protection was available to him and the option of relocation was also open to the applicant.

22.  The Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019 held that the fact of relocation is to be determined by the Adjudicator.

23.  The Court of Appeal inRe: TK v Jenkins & Another [2013] 1 HKC 526, C.A. held that if the risk of persecution or torture is a localised one, and it is not unreasonable, unsafe or unduly harsh for the refugee or claimant to relocate to another part of the country in question (the “internal relocation alternative”), there is no justification for affording international protection under either the Refugees Convention 1951 or the CAT. [32]

24.  In the circumstances, the applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.

CONCLUSION

25.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him extension of time to file Form 86 for his application for leave to apply for the intended judicial review. Accordingly, I dismiss his application.

26.  It is further directed that:

(1)   If the applicantintendsto appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

(2)   When filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

(3)   The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

(4)   If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

(5)   Liberty to apply.

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