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

HCAL 2825/2018

[2022] HKCFI 799

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2825 of 2018

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 Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review of the Decision dated 25 August 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”). The applicant’s application filed on 10 December 2018 is late for about 13 months. I shall deal with this issue below.

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

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.

The applicant

4.  The applicant is a national of India.  He entered Hong Kong as a visitor on 14 August 2014.  However, he did not depart when his limitation of stay expired and had overstayed.  On 8 September 2013, he was arrested by the police.  On 10 September 2013, he lodged a Cruel, Inhuman or Degrading Treatment or Punishment claim, which was later taken as a non-refoulement claim and assessed on all applicable grounds.  His claim was made on the basis that, if refouled, he would be harmed or killed by his father.

5.  According to the applicant, he developed a romantic relationship with his girlfriend in July 2011.  His parents disapproved of this relationship.  In around February or March 2012, his father confronted him and had a fight with him.  Since then, the applicant’s parents had been regularly approaching his girlfriend’s family and asked them to arrange a marriage for the girl so that she could leave him.  In May or June 2012, his father threatened to kill him if he continued to date the girl.  Late in the same year, his father attacked him with wooden stick because he again refused to break up with his girlfriend. Out of fear, he fled to Hong Kong for protection.  Details of the applicant’s claims were set out at paragraph 6 of the Notice of Decision dated 6 January 2016 by the Director (“the Director’s First Decision”) and paragraph 18 of the Board’s Decision described below.  

The Director’s Decisions

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

a.     the torture risk under Part VIIC of the Immigration 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”).

7.  By the Director’s First Decision, the Director refused his claim on the grounds of Torture risk, BOR3 risk and Persecution risk.  The Director found that the level of risk of harm from the applicant’s father upon refoulement was assessed to be low because (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [11]-[14]; (ii) state protection would be available to him [15]-[17]; and (iii) internal relocation was an option open to him [18]-[22].  In the Notice of Further Decision dated 1 February 2017, the Director also rejected his claim on BOR2 risk (“the Director’s Second Decision”) for the reason that there was no evidence to show that his right to life under BOR2 would be violated upon his return.

8.  For simplicity, the Director’s First Decision and the Director’s Second Decision will be referred to as “the Director’s Decisions”.   

The Board’s Decision

9.  The applicant appealed the Director’s Decisions to the Board.  The Board scheduled an oral hearing on 19 July 2017 for his appeal but he elected not to give evidence [20].

10.  Having considered the applicant’s evidence, the Board found that (i) the applicant was not inflicted with serious injuries from his father.  There were mere quarrels between them and the injuries from the alleged attack were not severe; (ii) the honor killing was only a verbal threat; and (iii) after the alleged attack, the applicant continued to stay in his home village unharmed [21].  Further, the Board considered the country of origin information and found that state protection was available to the applicant [25]-[27].  In assessing the individual grounds, the Board also found that it was a private dispute without state involvement [29]-[31].  In any event, internal relocation was available to the applicant [44]-[47].  For these reasons, the Board rejected the applicant’s claim and dismissed his appeal.  

Application for leave to apply for judicial review

11.  The applicant filed Form 86 on 10 December 2018 for leave to apply for judicial review of the Board’s Decision.

12.  In his affirmation in support of his application, he stated no ground. He attached his grounds in support of his application to Form 86. His grounds are that he believes the Board’s Decision was not reasonable or fair; that the Board had not given him sufficient time to arrange relevant evidence; that there was an example of a person having been repatriated back to his own country and he was killed; the corruption and incompetency of the administration of his country is still a very serious problem and that the Board had failed to attain high standards of fairness required by the Wednesbury test.

DISCUSSION

13.  As mentioned in paragraph 1, the applicant’s application is late. The Court has to consider the length of the delay, the reasons for the delay, the prospect of the intended application and the prejudice to the putative respondent if extension of time is granted. Also, the Court should not grant extension for a hopeless application. See AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 and Re Adumekwe Rowland Ejike [2019] HKCA 702, §19. I shall, therefore first consider the merit of the applicant’s case.

14.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

15.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

16.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1).… …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

17.  The applicant has refused to give evidence after the adjudicator explained the purpose of the hearing to him. He said that he had nothing to add in respect of the Notice of Further Decision. He said “I want you to deal with my case.” The Board proceeded to consider his evidence and found the facts in paragraph 10 above.

18.  The Board might have drawn adverse inference against the applicant’s evidence on the papers. On the issue of whether the Board is entitled to do so in light of higher standards of fairness as required of the Board, there are a number of authorities for consideration.

19.  The Court of Final Appeal in Li Defan & Another v HKSAR (2002) 5 HKCFAR 320 at §27, in which Lord Hoffmann NPJ cited the High Court of Australia: Weissensteiner v. The Queen (1993) 178 CLR 217 held:

“27. … in Weissensteiner …

     ‘…it has never really been doubted that when a party to litigation fails to accept an opportunity to place before the court evidence of facts within his or her knowledge which, if they exist at all, would explain or contradict the evidence against that party, the court may more readily accept that evidence.  It is not just because uncontradicted evidence is easier or safer to accept than contradicted evidence.  That is almost a truism.  It is because doubts about the reliability of witnesses or about the inferences to be drawn from the evidence may be more readily discounted in the absence of contradictory evidence from a party who might be expected to give or call it. In particular, in a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused.  …  It is only when the failure of the accused to give evidence is a circumstance which may bear upon the probative value of the evidence which has been given and which the jury is required to consider, that they may take it into account, and they may take it into account only for the purpose of evaluating that evidence.  The fact that the accused's failure to give evidence may have this consequence is something which, no doubt, an accused should consider in determining whether to exercise the right to silence ... But it is not to deny the right; it is merely to recognize that the jury cannot, and cannot be required to, shut their eyes to the consequences of exercising the right.”

20.  One must bear in mind that the above is a criminal case where the burden of proof is on the prosecution and the defendant has no burden of proof of his innocence. Therefore, the defendant is not obliged to give evidence. In the present case, the burden of proof is on the applicant and he has the obligation of proving his case to the Director and the Board.

21.  The Court of Appeal in TK v Michael C Jenkins Esq and Director of Immigration CACV 286/2011, 21 November 2012 [2013] 1 HKC 526 CA, Hon. Cheung CJHC, Stock VP and Fok JA held:

“25. High standards of fairness certainly do not entitle the torture claimant, having stated a claim, “to simply sit back and require the Director to disprove it”. The exercise of determining whether a claim made under article 3(1) of the CAT is valid must be one of “joint endeavour”. CH v Director of Immigration [2011] 3 HKLRD 101, para 47.”

22.  The applicant is obligated under the Ordinance to cooperate with the Director and the Board for the assessment of his claim. See section 37ZA (1)(a).[1] As the law imposes an obligation on him to make prompt and full disclosure of all material facts in support of the claim, his refusal to do so is in contravention of the statutory provision and he must bear the consequences. It is not difficult to understand the consequence of the Board not believing his evidence if he refused to answer the questions put by the Board to him. High standards of fairness gives no exemption to the applicant for the compliance of the Ordinance.

23.  I therefore consider that it is legitimate for the Board to draw adverse inference against the applicant’s credibility on the facts of his case.

24.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

25.  There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

26.  I therefore refuse to extend time for the applicant to apply for leave to apply for judicial review.  Accordingly, I dismiss his 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