BHAMBRA PRITPAL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1524/2019

[2024] HKCFI 1491

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1524 of 2019

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

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court.

1.      Leave for the applicant to apply for Judicial Review of the Board’s 2^nd Decision be granted; and

2.      The applicant shall, within 14 days from the grant of leave, issue an originating summons in accordance with Order 53, rule 5 of the RHC.

Observations for the Applicant:

THE APPLICATION

1.  The applies for leave to apply for judicial review of the Decision dated 17 May 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s 2^nd  Decision”) on BOR 2 risk.

2.  The applicant did not ask for a hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court, I shall deal with his application on paper.

The applicant

3.  The applicant, aged 46, is an Indian. He was refused permission to land in Hong Kong four times on 7 March 2015, 7 April 2015, 13 April 2015 and 15 April 2015. On 16 April 2015, the applicant made a non-refoulement claim upon his arrival at Lowu Control Point.  The claim was made on the basis that, if refouled, he would be ill-treated or harmed by the family members of his girlfriend (“Priya”) because of his courtship with her.

4.  According to the applicant, he came from a Sikh family and was a supporter of Indian National Congress Party. He first met Priya at his friend’s wedding on 26 April 2014.  Priya came from a Hindu family affiliated to Shiromani Akali Dal and Bharatiya Janata Party. The two started dating a month later. In or about August 2014, the applicant proposed to Priya. She phoned the applicant that night after she went home and informed him that due to their difference in religion and political affiliations, her family disapproved their relationship and even assaulted her. Since then, Priya was put under curfew and was not allowed to go out. On 30 August 2014, Priya called the applicant and informed him that her family had arranged her to marry another man.

5.  On 1 September 2014, when the applicant was going home from prayer in the temple, he was assaulted by six men including Priya’s brother.  He was beaten by sticks and kicked all over his body. His back, waist and legs were all hurt. He lost consciousness during the assault and was later brought home by his neighbours.  A doctor came to treat his wounds and it took him 4-5 days to recover. The applicant did not report the assault to the police because he did not want to affect Priya.  During that month, he also received 2-3 threatening phone calls.

6.  On 26 September 2014, the applicant was assaulted again by four persons when he was going home from prayer in the temple. He was beaten up bare-handed for around two minutes, with punches and kicks all over his body including his face, back and chest. The attackers left after the passers-by approached the applicant. He did not visit a doctor this time, but self-treated his wounds by ointment and painkillers. The applicant reported the assault to the police the next day, but was informed that no action could be taken because he could not recognise any of the attackers in the dark.

7.  On 10 October 2014, the applicant was arrested by four police officers at his home for theft. He was accused of stealing two gas cylinders, two fans and some cooking utensils from Priya’s uncle when in fact he was merely posting posters for the Indian National Congress Party in the vicinity of his home. The applicant was then brought to the police station and was tortured by a leather strap machine for about half an hour. Priya’s uncle then told the applicant either to confess to theft or to leave his hometown. The applicant chose the latter and was subsequently released. His father and brother took him to a private clinic to treat his wounds. The applicant did not dare to report the assault by police to any higher authority because he was afraid this would cause him more trouble.

8.  Shortly afterwards, his father drove the applicant to his maternal grandparents’ home with the companion of his brother. He stayed there for about a month, during which nothing eventful happened apart from receiving threatening phone calls from a friend of Priya’s brother. On 20 November 2014, the applicant went back to his hometown because his father was admitted to hospital due to a traffic accident.

9.  On 26 November 2014, while the applicant was riding a motorcycle on his way home after visiting his father in the hospital, he was kidnapped by four men and was brought to a room on a farmland. The four men tied the applicant’s left arm to a tube well and punched him on his face. A tooth fell out as a result and both his chins got swollen. The applicant was then told that the reason for the assault was due to his return to his hometown and he was warned that he would be shot if he was seen again. The four men later revealed that they belonged to a gangster group in his hometown, whom the applicant believed was hired by Priya’s family. The applicant visited a doctor the next morning and was prescribed some painkillers for his injuries. His family told him not to report the kidnap and assault to the police as they were also threatened.

10.  On 27 November 2014, the applicant’s friend drove him to his maternal aunt’s home, where he stayed until the end of December 2014. On the last day before he left, some men sent by Priya’s family went to his aunt’s shop to enquire the applicant’s whereabouts. Yet, he did not encounter any of them personally during his stay at his aunt’s home. The applicant relocated to his grandparents’ home between end of December 2014 and early March 2015, during which nothing eventful happened. In or about early March 2015, Priya came to see the applicant. Her family found out about their communication and Priya’s brothers warned the applicant’s family that the applicant would be killed if he stayed in touch with Priya. His family therefore advised him to leave India to avoid Priya’s family. The applicant left India on 4 March 2015. He attempted to enter Hong Kong on four occasions between 7 March 2015 and 15 April 2015, but was unsuccessful. He then made a non-refoulement claim on 16 April 2015.

11.  The applicant did not maintain contact with his family and hence had no updated information regarding Priya’s family members. He considered internal relocation within India not viable because Priya’s family could track him down wherever he went given that they had influenced the police and hired gangsters in the past.

12.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 13 July 2015 (“the Director’s 1^st Decision”).

The Director’s Decisions

13.  The Director considered the applicant’s claim in relation to the following risks:

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

b.  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

c.  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”).

14.  By way of the Notice of Decision dated 13 July 2015 (“the Director’s 1^st Decision”), the Director dismissed the applicant’s claim. The Director found that: (i) the past actions taken by Priya’s family members indicated that they had no real intention to severely harm or kill him [12]; (ii) the dispute between the applicant and Priya’s family members were private in nature with no state involvement [13]; (iii) state protection is available to him upon his return [14]-[19]; (iv) internal relocation is viable [20]-[23] and (v) the applicant’s case failed to meet any of the requirements under BOR 3 risk [24]-[26], Persecution risk [27]-[30] or Torture risk [31]-[34].

15.  In the Notice of Further Decision dated 10 January 2017 (“the Director’s 2^nd Decision”), the Director also rejected the applicant’s claim on BOR 2 risk for the reason that there was no evidence to show that his right to life under BOR 2 would be violated upon his return.

The Board’s 1^st Decision

16.  The Board received the applicant’s unsigned Notice of Appeal against the Director’s 1^st Decision on 30 July 2015, when he was supposed to make the appeal on or before 28 July 2015. There was also no explanation for the delay. On 7 August 2015, the Board received the applicant’s explanations that the appeal was late because (i) he only got the appeal form to fill in on 20 July 2015; (ii) he was weak in English and (iii) he had no knowledge on how to write the appeal. He also claimed that the Notice of Appeal was submitted on 24 July 2015. The applicant provided no documentary evidence in support of his explanations [7].

17.  The Board found there was inordinate delay on the applicant’s part and his explanations for lateness could not be substantiated [8]. It considered that it would not be unjust to disallow the applicant’s late filing. His appeal was therefore dismissed and the Director’s 1^st Decision was confirmed.

The Board’s 2^nd Decision

18.  The Board received the applicant’s Notice of Appeal against the Director’s 2^nd Decision on 14 February 2017, when he was supposed to make the appeal on or before 26 January 2017.

19.  The Board noted that the Director’s 2^nd Decision was sent to the proper and correct address of the applicant. In any event, it was the applicant’s duty to inform the Immigration Department of his new address. Furthermore, the Board also noticed the applicant’s late appeal application against the Director’s 1^st Decision and his failure to take any action despite being advised by the CIC officer to go to Kowloon Bay to lodge an appeal. Taking into account also that no supporting documentary evidence was provided and his inordinate delay of 19 days, the Board dismissed the applicant’s appeal and confirmed the Director’s 2^nd Decision [14]-[21].

Application for leave to apply for judicial review of the Board’s Decision

20.  The applicant has filed Form 86 dated 4 June 2019 for leave to apply for judicial review of the Board’s 2^nd Decision.

21.  In his affirmation in support of his application, the applicant did not raise any specific ground.

DISCUSSION

22.  The question for this Court is whether the Board was right to refuse to extend time for the applicant to file his notice of appeal against the Director’s 2^nd Decision. Although the applicant did not appeal against the Director’s 1^st Decision, in the consideration of the Director’s 2^nd Decision, the Board would have to take into consideration the facts in the Director’s 1^st Decision as well. The Board had not considered the 1^st Director’s Decision.

23.  The Board found that the Director’s 2^nd Decision was sent to the applicant’s proper address. Alternatively, if the applicant had moved to a new address, he had failed to inform the Director of his new address and he has himself to be blamed [19].

24.  The Board relied upon section 37ZT of the Ordinance, which was revised and became operative on 1 August 2021.

25.  Under the old version of section 37ZT, the Board has to consider the merit of the applicant’s case notwithstanding he was late in filing his notice of appeal.  In Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019, in a case where the applicant was late in filing his notice of appeal to the Board and he had given no reason for such delay, the Court of Appeal held,

“18. …where there is a serious or significant breach for which no good reason is given, the decision maker moves to evaluate all the circumstances of the case with a view to dealing justly with the application.

20. … …it was incumbent upon the Board, in exercise of its discretion to extend time for appeal, to take the merits of the applicant’s case into account regardless of the procedural breaches or the lack of explanation therefor.”

26.  As mentioned before, the Board had not considered the Director’s 1^st Decision. Without considering the merit of the applicant’s case as set out in the Director’s 1^st Decision, the Board’s refusal to grant extension of time for the applicant to file his notice of appeal is an error of law.

27.  The applicant has established that he has a realistic prospect of challenging the Board’s 2^nd Decision.

CONCLUSION

28.  I grant leave to the applicant to apply for judicial review of the Board’s 2^nd Decision. The applicant shall, within 14 days from the grant of leave, issue an originating summons in accordance with Order 53, rule 5 of the RHC.

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