JOGA SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 1263/2020

[2025] HKCFI 5138

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1263 OF 2020

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;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 42-year-old national of India who arrived in Hong Kong on 11 January 2007 as a visitor with permission to remain as such up to 18 January 2007 when he did not depart and instead overstayed, and was arrested by police more than 10 months later on 21 November 2007. After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to India he would be harmed or killed by his sister-in-law over some land dispute in his home village. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Nathupur, India. After leaving school he assisted in his father’s farming in his home village where he continued to reside with his parents and 2 brothers and their wives.

3.  After one of his brothers Buta went to work in Dubai in 2005, his wife Kuldeep returned to stay in her mother’s home, but as she coveted for the properties of the Applicant’s father, she demanded the Applicant to help her to persuade his father to let her have some of those properties, and when the Applicant refused, she then made threats against him.

4.  After trying to attack the Applicant with a knife and wooden stick on one occasion but to no avail, Kuldeep then made all sort of false charges against him to the police, for which the Applicant was arrested for questioning and interrogations, and although he was subsequently released without charge, the Applicant became fearful for his safety, and on his father’s advice he moved to Mumbai in late 2006, and on 10 January 2007 he departed India for Hong Kong where he subsequently overstayed, and upon his arrest by the police he then raised his torture claim, for which he completed a Torture Claim Form (“TCF”) on 18 April 2013 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  Whilst released on recognizance pending the determination of his torture claim, the Applicant was arrested by police on 2 January 2008 for indecent assault for which he was subsequently convicted and sentenced to prison for 6 weeks.

6.  Upon his discharge from prison and was again released on recognizance, the Applicant was again arrested on 19 July 2012 for undertaking unauthorized employment, and for which he was sentenced to another term of imprisonment for 10 months.

7.  By a Notice of Decision dated 20 June 2013 the Director of Immigration (“Director”) rejected the Applicant’s torture claim under Section 37ZI(1) of Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”) after taking into account of all the relevant circumstances of his claim and upon finding no evidence showing that the threats and attacks from Kuldeep were done by or at the instigation of or with the consent of or acquiescence of any government authority or public official or other person acting in an official capacity in India that would amount to torture within the definition of the Ordinance, and concluded that it is not accepted that the Applicant would be subjected to any real risk of torture if returned to India.

8.  The Applicant never brought any appeal to the Torture Claims Appeal Board (“Board”) by virtue of Section 37ZR(b) of the Ordinance as he was so advised in the decision to do so if he was aggrieved by the Director’s decision, but upon the commencement of the Unified Screening Mechanism (“USM”) in 2014, he was allowed to proceed with a claim for non‑refoulement protection to be assessed on all the remaining applicable grounds other than torture risk, including risk of his absolute and non-derogable rights under Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 including right to life under Article 2 (“BOR 2 Risk”) and right not to be subjected to torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (Persecution Risk”).

9.  However, by a letter dated 7 August 2017 the Applicant notified the Director of his withdrawal of his non-refoulement claim, which was acknowledged by the Director by a letter dated 14 August 2017 that no further action will be taken on his non-refoulement claim.

10.  Almost 3 years later on 23 June 2020 the Applicant filed a Form 86 for leave to apply for judicial review of the earlier decision of the Director of 20 June 2013 which rejected his torture claim, but no ground for seeking relief was given in his Form or his supporting affirmation of the same date in which he just stated that he is not satisfied with the decision but without putting forth any proper ground for his intended challenge of the Director’s decision, or for that matter why he had not first brought his appeal against that decision to the Board as stipulated by the Ordinance as noted above.

11.  In any event, by then the Applicant was clearly also seriously out of time with his application, as 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 day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

12.  As the last day of the three-month period for him to file his Form 86 fell on 20 September 2013, the Applicant was therefore some 6 years and 9 months late with his application, and in considering whether to extend time, the Court shall 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: AW v Director of Immigration [2016] 2 HKC 393.

13.  In the Applicant’s case, a delay of 6 years and 9 months must be considered as extremely substantial and inordinate, for which he did not provide any explanation or reasons in his Form or affirmation, nor was he able to do so at the hearing of his application, I am unable to see any good or valid reason for his such serious delay.

14.  As for the merits, if any, of his intended application, as noted above that the Applicant has failed to put forward any proper ground for his intended challenge, or why he had not first brought any appeal to the Board, as stipulated by Section 37ZR of the Ordinance as follows:

“Appeal

A person aggrieved by a decision of an immigration officer may appeal to the Appeal Board if the decision is made in respect of the person under –

(a) section 37ZE(4) or 37ZG(5) (decision not to re-open a torture claim);

(b) section 37ZI(1)(b) (decision rejecting a torture claim); or

(c) section 37ZL(1) (revocation decision made by an immigration officer).”

15.  In the present case, the Applicant did not first, as stipulated above under Section 37ZR(b) of the Ordinance, proceed to appeal to the Board against the Director’s decision in rejecting his torture claim, as it is clear from the Ordinance that there is a two-tier administrative structure for the processing and screening of torture claims, with the first tier by an immigration officer on behalf of the Director, and the second tier by a qualified member of the Board, and hence a torture claimant not satisfied with the Director’s decision should appeal to the Board under the second-tier structure, and only thereafter if he wishes to challenge the Board’s decision that he can do so by seeking leave from the Court to apply for judicial review of the decision.

16.  Further and in the alternative, if the Applicant had wanted to instead proceed with his non-refoulement claim under the remaining applicable grounds, he should have made a request to the Director to re-open his claim under Section 37ZE(2) of the Ordinance by providing sufficient evidence in writing to satisfy an immigration officer that since the withdrawal of his non-refoulement claim that there has been a change of circumstances that could not reasonably have been foreseen by him when he gave his notice of withdrawal, and that when taken together with the material previously submitted for his claim could increase the prospect of success of his claim, or by reason of special circumstances that it would be unjust not to re-open his claim, but which the Applicant has again failed to do so.

17.  As such, and for the given reasons, I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his such serious delay, I refuse to extend time and accordingly dismiss his leave application.

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