DALJIT BOPARAI v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 615/2017

[2019] HKCFI 1653

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 615 of 2017

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 oral submissions by the Applicant in open court;

Leave to apply for Judicial Review is refused.

Observations for the Applicant (Order by the Honourable Mr. Justice Yau):

1.  The applicant is an Indian male, born on 2 December 1976 in District Gurdas Pur, Punjab of India. He was educated up to Class 3.  He is married.  His wife and 2 children are living in India.  He worked as a farmer in the land owned by his family after finishing school.

2.  He inherited the land after the death of his father in late 2006.  The land was accessible only by going through the land of a rich person named MS.  MS had been a member of the Akali Dal Party (“ADP”) for more than 10 years and was powerful, having connections with the local police and the politicians of ADP. The applicant also heard that MS had connections with the members of the Legislative Assembly (“MLA”). 

3.  One day in late 2006, MS asked the applicant to give up his land to him and the applicant refused.  MS became angry and together with 2 men beat the applicant with wooden sticks.  As the applicant had no money and the injuries he suffered were not serious he did not seek any medical treatment.  When MS threatened to kill him if he entered MS’s land again he made a report to the Batala police station but the police did not file his complaint and told him to go away.   The applicant tried to reconciliate with MS in March 2007 but was refused by MS who made the same threat to the applicant again.

4.  One night in May 2007 when the applicant was not at home, 2 men went to his house and told his wife not to grow any crop on his land as MS wanted to take over it.  The 2 men also damaged the furniture and other things in the house.  Being sacred the wife moved to her parent’s home, taking along the 2 children.  The applicant made a report to the police and the village council but no action was taken.

5.  Around August 2007 the 2 men of MS went to the applicant’s home again and the applicant fled to stay in a friend’s house for about 2 to 3 weeks.  Being afraid that MS might find him the applicant left India and arrived in Hong Kong by air on 22 October 2007.  He was permitted to stay in Hong Kong as a visitor for 14 days.  On 15 November 2007 the applicant was arrested in Hong Kong for overstaying.  He made a torture claim on 30 November 2007 and was released on recognizance on 5 December 2007.  His claim was refused by the Director of Immigration (“Director”) by a notice of decision dated 23 January 2014.

6.  The applicant made a non-refoulement claim on other applicable grounds on 28 March 2014 but withdrew it in April 2016.  The applicant applied to re-open his non-refoulement claim by a written submission on 1 August 2016 and the application was rejected by the Director on 29 September 2016.  The applicant made the application again by a letter dated 27 September 2016 which was rejected by the Director on 6 October 2016.

7.  On 22 November 2016 the applicant applied to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) for late filing of notice of appeal against the decision of the Director rejecting his application to re-open his non-refoulement claim.  According to section 37ZS(1) of the Immigration Ordinance, Cap 115 the notice of appeal should have been filed not later than 22 October 2016.

Conclusion

8.  In support of his application for leave to judicial review the decision of the Board, the applicant filed an affirmation setting out only one ground of application that danger still existed for him in his home country.  This ground had in fact been dealt with by the Director who after careful analysis came to the conclusion that there was no evidence of official involvement, consent or acquiescence in the torture claim of the applicant and that the applicant faced no real risk of torture on his return to India.  The applicant provided no details of his challenge against the decision of the Director.  This Court is of the view that there was neither procedural unfairness nor error of law in the decision of the Director.    

9.  The gist of reasons given by the applicant to the Board for not filing the notice of appeal in time was as follows:

(a)  being uneducated he was unable to read and write;

(b)  he was in prison when he received the decision of the Immigration Department and there no one to assist him;

(c)  he only came to know the procedure of appeal after being remanded in Castle Peak Bay Immigration Centre; and

(d)  he had been very upset.

10.  The Board considered and dealt with all these reasons thoroughly and the crux of its decision was that the application could have easily obtained assistance to lodge the appeal against the decision of the Immigration within the time limit even when he was detained in a prison.  The Board found that the applicant had failed to provide any cogent reason why he could not have filed the notice of appeal in time.  This Court does not find any flaw in the approach and conclusion of the Board.

11.  There are no reasonably arguable grounds to support the intended judicial review and there is no realistic prospect of success. Leave to apply for judicial review is 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