LAKHWINDER SINGH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 517/2019

[2022] HKCFI 1016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 517 of 2019

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;

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge To):

Introduction

1.  This is the Applicant’s application by Form 86 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 25 January 2019 (the “2nd Decision”) and the decisions of the Director of Immigration (the “Director”) in his notice of decision dated 12 October 2015 (the “1st Notice”) and 15 February 2017 (the “2nd Notice”). 

2.  The Applicant arrived in Hong Kong on 3 August 2015 on transit to Macau.  After he was refused permission to land in Macau, he returned to Hong Kong and presented for arrival clearance claiming that he had come on a visit for three days.  When he was refused permission to land, he lodged a non-refoulement claim.   

3.  The Applicant’s claim was assessed on all three applicable grounds then available under the USM, namely, Torture Risk[1]; BOR 3 Risk[2]; and Persecution Risk[3]. His claim was dismissed by the Director in the 1st Notice. He appealed to the Board.  His appeal was dismissed by the Board on 3 February 2016 (the “1st Decision”). He did not pursue the 1st Decision further.  The 1st Decision therefore became final.

4.  On 27 January 2017, the Director invited the Applicant to submit additional facts, in particular those relevant to BOR 2 Risk[4], which he might have omitted due to any misunderstanding.  The Applicant did not respond.  On 15 February 2017, the Director issued the 2nd Notice rejecting his application for protection under BOR 2 Risk ground.   

5.  The Applicant then lodged a notice of appeal against the 2nd Notice (“NOA”) which arrived at the secretariat of the Board on 25 April 2017.  By that time, it was one month and twenty-two days late.  The Board was not satisfied with his explanation for the delay and issued the 2nd Decision rejecting his late filing.  The Applicant now seeks leave to apply for judicial review of the 2nd Decision.   It should be noted that the 2nd Decision is about late filing of the NOA and not about the merit of claim under BOR 2 Risk ground.

6.  The decision of the Board is reviewable by judicial process but not the decision of the Director in the Notice because there are established statutory procedures of appeal to the Board and the Applicant has invoked those procedures.  The Director’s decisions in the notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[5]. The only decision which is relevant for this application is the Board’s 2nd Decision.

7.  The Applicant sought an oral hearing, but did not appear at the hearing scheduled for him on 20 January 2022.  In the notice of hearing sent to his address as stated in his Form 86, he was advised that if he did not appear at the hearing, he will be deemed to have waived his right to make oral submissions and the Court will determine his application according to the paper placed before the Court.  Having regard to the nature of the application, the evidence, the Decision, the issues raised, and all the circumstances, the Court considered it appropriate to determine the application on paper.

The Applicant’s case

8.  The following account of the Applicant’s case is mainly based on the information in his non-refoulement claim form (“NCF”) which was prepared by him with assistance of the Duty Lawyer Service.   

9.  The Applicant is an Indian national and supporter of the Congress Party (“INC”).  He claimed that if refouled, he will be at risk of harm from the head of his village Sahib Singh (“Sahib”) and his son Manjit Singh (“Manjit”) because he had refused their demand to abandon INC to join the Shiromani Akali Dal Party (“SAD”).

10.  In February 2015, when he was putting up INC posters, Sahib told him to stop supporting INC and to join SAD.  He refused. Then when he was working at the polling station in his village, Manjit and two to three men armed with pistols and hockey sticks arrived.  They damaged the booth and assaulted the Applicant.  Manjit then fired his pistol into the air and shouted “I am not gonna spare you!”  The Applicant was hospitalized for two to three days.  After his discharge from hospital, he and his father made a complaint to the police.  But he heard nothing more from the police.

11.  One day in May, the Applicant was intercepted by Manjit and others armed with hockey sticks.  Manjit said “How dare you report against us?”  Then they assaulted him with hockey sticks until his parents and neighbours intervened.  The Applicant did not make a report to the police as he believed it would be useless.

12.  The Applicant took refuge in his aunt’s home in Faridkot. While he was there, his father told him that he was informed by the police that they had received an order from the Food and Supply Minister to stop the investigation of the Applicant’s complaint.

13.  In early July 2015, the Applicant was again attacked by Manjit and others with hockey stick when he was on his way to the Sikh temple.  The attack stopped when some passers-by intervened.  Thinking that it was not safe for the Applicant to remain in India, his father arranged his passage to Hong Kong.

14.  The Applicant claimed that internal relocation was not possible because Manjit would still be able to locate him and harm him.  He said that the police will not protect him because SAD is in power and the police will only listen to influential people.

15.  The Applicant also disavowed some crucial parts of his written representation citing nervousness and misunderstanding.  The centrepiece of his story is that he, a 20-year old farmer at the material time with limited political experience and involvement, was being hunted down by Sahib and Manjit simply because he had refused to leave INC to join SAD. 

The finding of the Board in the 1st Decision

16.  There is no need to analyse the 1st Decision which is now final.  Suffice it is to say that the Board had correctly directed itself on the applicable legal principles and thoroughly analysed the evidence.  The Board had given the Applicant opportunity to explain the inconsistencies between his evidence in the NCF and at the oral hearing and to respond to the Country of Origin Information (“COI”) referred to by the Board.  At a point in his evidence, he declared that he was not willing to answer any more questions from the Board.  The Board found there was no or no reliable evidence to show that the Applicant had supported INC; was an authorized worker for INC in the municipal elections in February 2015; had done anything to achieve a political profile; that Sahib was the Sarpanch of the Applicant’s village; that Sahib and Manjit had threatened the Applicant and ill-treated him because he refused to join SAD; and that Manjit had carried a firearm into the polling station area and had fired a shot into the air.  The Board found there was no evidence to support the centrepiece of the Applicant’s case.

17.  The Board found the Applicant had failed to show a well-founded fear of being persecuted and the police were unwilling to protect him from ill-treatment for a reason protected by the 1951 Convention relating to the Status of Refugees, ie by reason of race, religion, nationality, membership of a particular social group and political opinion.  Hence, the Board found he had failed to establish his claim for protection under Persecution Risk ground.

18.  The Board considered the Applicant’s case that a Panch from a small village could hunt down and harm a twenty-year old farmer for refusing to join SAD implausible and irrational. It was therefore not satisfied that the Applicant had shown that he faced a genuine and substantial risk of being subjected to such mistreatment as to entitle him to protection under BOR 3 Risk ground.

19.  Apart from the above reasons, the Board also considered it inherently improbable for a minister of the state of Punjab to personally intervene and instruct the police force not to entertain the Applicant’s complaint and that the police would have announced their own wrongdoing.  The Applicant had failed to prove his ill-treatment was inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity to bring to ill-treatment within the definition of “torture” under section 37U of the Immigration Ordinance as to entitle him to protection under Torture Risk ground.  The Board did not find it necessary to consider the issue of internal relocation.

The finding of the Board in the 2nd Decision

20.  As already mentioned above, the Director invited the Applicant for submission of additional facts relating to his non-refoulement claim under BOR 2 Risk ground.  The Applicant did not respond.  The Director rejected his claim in his 2nd Notice.  The Applicant lodged the NOA to appeal the decision in the 2nd Notice.  The 2nd Notice was dated 15 February 2017.  Pursuant to section 37ZV(3), it was deemed to have been served on the Applicant on 17 February 2017.  By adding the statutory 14-day period for filing the NOA, the latest filing date was 3 March 2017.  The Applicant was late by one month and twenty-two days. 

21.  The Board correctly referred to section 37ZT(2)(a) and (b) of the Immigration Ordinance for the list of matters it may take into account in deciding whether to allow the late filing.  These are:

(i)    the statement of reasons stated in the application for late filing of the NOA;

(ii)   any accompanying documentary evidence relied upon in support of those reasons; and

(iii)  any other relevant matters of fact within the knowledge of the Board.

22.  The explanation for the delay given by the Applicant in Section 5 of the NOA is that he did not receive the 2nd Notice as he had moved his address in February 2017; he was only informed of the 2nd Notice on 6 March 2017; he went to an Immigration Depart facility in Kowloon Bay on 12 March 2017, but did not mention the purpose of the visit; and then on 21 April 2017 he received a copy of the 2nd Notice (presumably a duplicate copy) sent to his home. 

23.  Having carefully analysed the evidence or information provided by the Applicant, the Board found that the Applicant moved from his correspondence address in Lantau shortly before or after the 2nd Notice was issued.  He learned about the decision in the 2nd Notice on 6 March 2017 and informed the Immigration Department of his new address on 9 March 2017.  He claimed to have received a copy of the 2nd Notice on 21 April 2017.  He did not disclose why he apparently took no steps to apply for late filing after he learned about the decision in the 2nd Notice on 6 March 2017.  After referring to Karamjit Singh[6], the Board found the Applicant had to bear the consequence of the delay occasioned by his own omission in informing the Immigration Department of his change of address.

24.  After referring to some local and United Kingdom authorities, including The Secretary of State for the Home Department v Begum[7], and the relevant rules and the practice directions contained in the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme and after considering all the factual circumstances known to the Board, the Board was satisfied pursuant to section 37ZT(3) that there were no special circumstances which would make it unjust not to allow the late filing.  Accordingly, the Board concluded that the Applicant’s late filing of the NOA can be justly rejected.

25.  This is the decision in respect of which the Applicant now seeks judicial review.  The 1st Decision which is final is only part of the background.  But the finding of fact by the Board in that 1st Decision is binding on the Applicant.

The applicable legal principles          

26.  The role of the court in judicial review is not to re-assess the non-refoulement claims 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 scrutinize 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[8].

Grounds for judicial review

27.  The Applicant advanced the following four grounds for judicial review in his Form 86:

(1)   the Director and the Board reached the decisions wrongly; these decisions were not reasonable and fair;

(2)   the Director failed to give proper weight to the issue of state acquiescence; the Applicant was tortured at the behest of state enforcement agencies as well as those in the high ups of political circles;

(3)   the Director failed to take such argument and Country of Origin Information (“COI”) supportive of the Applicant’s case into account and failed to give enough weight to the argument; and

(4)   the Director failed to attain the high standard of fairness.

Discussion

28.  Except for the first ground, all these grounds were directed at the Director.  For the benefit of the Applicant, these grounds are deemed to be directed at the Board as well. It is also immediately apparent that the second and third grounds are directed at the making of the 1st Decision because state acquiescence and COI could have no place in the making of the 2nd Decision in which the issue was whether the Applicant has a reasonable explanation for the late filing.  The 1st Decision is final and is now beyond the realm of judicial review.  Even giving these grounds the widest possible interpretation, the issue raised by these grounds is whether the 2nd Decision was reached as a result of errors of law, procedural unfairness or was Wednesbury irrational.

29.  The Board correctly referred to section 37ZT(2) of the Immigration Ordinance mandates the Board when deciding whether to allow the late filing to take into account (i) the length of the delay; (ii) the explanation for the delay; and (iii) any other relevant matters of fact within the knowledge of the Board which would make it unjust not to allow the late filing.  The Board’s finding that the Applicant was one month and twenty-two days late; that the delay was serious and significant (see paragraphs 8 to 16 of the 2nd Decision); and that the delay was occasioned by his omission in informing the Immigration Department of his change of address (see paragraphs 17 to 21 of the 2nd Decision) are findings of fact. The conclusion that he has to bear the consequence of the delay in filing the NOA occasioned by his own omission is a consequence which necessarily follows as a matter of law (see: Karamjit Singh).  These finding and conclusion are beyond the realm of judicial review.

30.  The Board did not mention if it had considered “any other relevant matters of fact within its knowledge” before refusing the late application.  Apparently, the Board could find no such relevant matters.  As stated in paragraph 18 of its Decision, the circumstances mentioned by the Board are not exhaustive.  The Board cannot be expected to list all its negative findings. The adjudicator of the Board is a well-qualified and experienced professional in non-refoulement matters.  She must have borne in mind the high standard of fairness required in these proceedings and the notion that it would be unjust not to allow the late filing if there are merits in the Applicant’s intended appeal.  In Re Madbar Abdul Salam[9], a decision not available to the Board until two years later, the Court of Appeal put it beyond doubt that the three-stage test in Begum includes a consideration of the merits of the intended appeal as part of the special circumstances whether it would be unjust not to allow the late application.

31.  Out of abundance of caution, the Court called for the NOA from the Board.  The grounds of appeal stated in the NOA by the Applicant consist of nothing but a regurgitation of his fears of harm and claims for non-refoulement protection which had been considered by the Director in his 1st Notice and by the Board in its 1st Decision.  It contains nothing specific to BOR 2 Risk ground which is the subject matter for the appeal before the Board, if the late filing is allowed.  The finding of fact by the Board in its 1st Decision is final.  Hence, there is nothing relevant in this regard known to the Board which would make it unjust not to allow the late filing.   

Conclusion

32.  Having rigorously examined the 2nd Decision, the NOA, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the application for late filing under section 37ZT of the Immigration Ordinance; the burden of proof and standard of proof; and observed a very high standard of fairness.  The Applicant’s delay was serious and significant.  He failed to show he had exercised all due diligence to file the notice within time because of circumstances beyond his control.  The delay was occasioned by his own omission.  There were no special circumstances within the knowledge of the Board which would make it unjust not to allow the late filing.  These are finding of facts 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, unreasonableness and irrationality.  The Board’s 2nd Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  The Decision was utterly without fault. There were no such vitiating elements in the Decision.  The Applicant advanced no arguable grounds in support of the intended judicial review.  There is no realistic prospect of success in the proposed judicial review.  Accordingly, leave to apply for judicial review was 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] [2018] HKCA 549

[6] CACV 78/2018; [2018] HKCA 460

[7] [2016] EWCA Civ 122 (03 March 2016)

[8] [2018] HKCA 524 at para 14(1)

[9] CACV 57/2019, [2019] HKCA 640