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

HCAL 1554/2023

[2024] HKCFI 552

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1554 of 2023

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;

1.   Leave to amend the Form 86 be granted;

2.   Extension of time to apply for leave for Judicial Review be refused; and

3.   Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 4 September 2023 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated8 November 2016 (the “2016 Decision”) allowing his application to withdraw his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 11 December 2015 (the “2015 Notice”).  

2.  The Applicant is an Indian national.  He entered Hong Kong on 11 October 2011 as a visitor and was permitted to remain until 27 October 2011.  He overstayed and was arrested on 22 July 2013.  On 24 July 2013, he raised a torture claim which was later converted to a non-refoulement claim.  His claim was dismissed by the Director’s 2015 Notice.  On 22 December 2015, he filed a notice of appeal/petition (“NOA”) against the 2015 Notice.  But on 24 October 2016, he lodged a letter with the Board seeking to withdraw his appeal/petition on the ground that “I am safe to return to my India”.  On 8 November 2016, the Board directed that his appeal/petition be dismissed and the decision in the 2015 Notice be confirmed.  He was then repatriated to India. 

3.  More than six years later, the Applicant appeared in Hong Kong and surrendered to the Immigration Department on 16 March 2023.  He claimed to have gone to Shenzhen on 5 February 2023 and then sneaked into Hong Kong on 13 March 2023.  On 11 April 2023, he again applied for non-refoulement protection on the ground that his life was at risk.  His application was treated as a request for making subsequent claim under section 37ZO of the Immigration Ordinance.  His request was rejected by the Director’s Notice of Decision dated 20 June 2023 (the “2023 Notice”). 

4.  Then, he sought to re-open his original claim by seeking to judicially review the 2016 Decision allowing his application to withdraw his NOA against the 2015 Notice.  Though he had received the 2023 Notice when he filed the present leave application, he did not seek to apply for leave to review the 2023 Notice along with this leave application.  His explanation is that he thought there is no need to review the 2023 Notice because everything would turn on a successful review of the 2016 Decision. 

Leave to amend the Form 86 to include a review of the 2023 Notice

5.  After having been explained that that is not the case, the Applicant said he wished to apply in respect of the 2023 Notice as well.  As at the date of hearing, almost six and half months have lapsed since the date of the 2023 Notice.  Pursuant to section 21K(6) of the High Court Ordinance andOrder 53, rule 4(1) of the Rules of the High Court, extension of time to file the leave application in respect of the 2023 Notice is required.  Had such application been made when the Applicant filed the present leave application, it would still have been made within time.  Accepting his rather unconvincing explanation, the delay is due to error of the law.  Usually, that is not a reasonable explanation.  However, for reasons as will be explained below, his intended review of the 2016 Decision has no prospect of success.  The Applicant will suffer grave prejudice if he is not allowed leave to file a review of the 2023 Notice out of time and if that decision turns out to have been wrongly made.  In view of all these considerations and the somewhat peculiar position of a non-refoulement claimant, the Court decided to err on the side of generosity and granted him leave to amend the Form 86 by including the 2023 Notice as one of the subject matters in respect of which relief is sought.   

Delay in applying for leave to review the 2016 Decision and merits of the intended review

6.  The leave application in respect of the 2016 Decision was made almost six years and ten months after the date of the 2016 Decision.  It is almost six years and seven months out of time.  In AW and Director of Immigration and William Lam[1], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the Applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.  Merits is usually a very important factor.  Where the delay is not very substantial, merits is usually the determinant factor.  But it was also held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung[2] that where an applicant is many months out of time, leave may be refused “however strong the complaint might otherwise be”.  The delay in this case is so substantial that in the absence of a reasonable explanation, leave may be refused on this ground alone.

7.  The Applicant gave the following explanation for the delay.  He was informed by his family that settlement had been reached by his family with his enemies that they will not harm him on his returns to India.  Hence, he withdrew his NOA against the 2015 Notice and returned to India.  However, he had to flee India and come to Hong Kong in 2023 because he will be killed by his enemies.  He admitted at the hearing that he withdrew the appeal out of his own free will, free from misrepresentation or duress, and with the understanding that if withdrawn the Director’s decision in the 2015 Notice remains in force. 

8.  In Ali Usman[3], the Court of Appeal approved the judgment of Deputy High Court Judge Yee in HT (Hussain Tasawar) v Betty Kwan[4] that where, as in the present case, the applicant sought to re-open an appeal which he had withdrawn, the tribunal should only consider whether or not the withdrawal was a valid one – ie, whether it was the result of a deliberate and informed decision.  Where this is not the case, the withdrawal is a nullity, the appeal remains extant and may be re-opened.  Otherwise, there is nothing to be re-opened.  The present case is on all fours with HT (Hussain Tasawar) v Betty Kwan.  Despite he now claims there are changes in circumstances in India, there is no basis to challenge his withdrawal as a nullity and to argue that the appeal is still extant and may be re-opened.  Thus, even accepting his explanation for the more than six years’ delay, which this Court does not, his leave application has no prospect of success.  It would therefore serve no purpose to grant him extension of time to file the leave application in respect of the 2016 Decision.  That 2016 Decision is final and binding on the Applicant.

9.  His explanation about changes in circumstances, if accepted, may constitute a possible basis to support the making of a subsequent claim under section 37ZO(2) of the Immigration Ordinance.   It cannot serve as an explanation for making a late application for judicial review of a decision to allow the withdrawal of an appeal validly made and over which the Court has no jurisdiction.  For the above reasons, both leave to file the leave application in respect of the 2016 Decision out of time and the leave application for leave to apply for judicial review of the 2016 Decision are refused. 

The Applicant’s case under the original claim

10.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer.    In gist, he claims he would be harmed by the local village head Suba and members of Akali Dal Party (ADP) upon his return because of his conversion to Christianity from Sikhism and his refusal to reconvert back to Sikhism.

11.  The Applicant, now aged 36, was born in Hardo Putli, Bik, Ajnala, District Amritsar, Punjab, India.  He completed high school and worked as a driver in Gurgaon City, Uttar Pradesh for six years.  He was converted to Christianity in 2010 at a Catholic church approximately four kilometres from his home.  His family attended a Christian church with him after his conversion. 

12.  On learning about his conversion, Suba and 10 to 12 people from his local village and a neighbouring village visited him in November 2010.  They confronted his father about his conversion. His father replied that Christianity was better.  They left without causing any trouble. 

13.  In around April 2011, Suba and his men came to the Applicant’s home again.  They told the Applicant’s father that his family would be cut off from the village and the Applicant would be barred from residing in the village unless he became a Sikh again. His father refused their demand.

14.  In June 2011, the same group of men assaulted the Applicant with bamboo sticks while he was traveling to work.  They repeated their demand for his re-conversion to Sikhism and accused him of disrespecting Sikh religion.  They attacked him with fists and bamboo sticks for about 4 to 5 minutes.  They stopped after some passers-by intervened. The Applicant had an open wound on his left leg which took approximately 20 days to heal.  He did not make any police report because he believed the local police would refuse to help because many police officers were Sikhs and the ADP was the ruling party in his home district.

15.  Shortly after, the Applicant relocated to Gurgaon City, New Delhi.  He stayed there until October 2011.  He learnt that his family was attacked by the same people who attacked him.  His father told him to leave the country and informed him that they would go to live with the Applicant’s grandparents in Adnala, District Amritsar, Punjab. 

16.  Around the same time, the Applicant learned from his landlord that some men had come to his flat looking for him.  He believed they were Sikhs from ADP and that they had learnt of his location from the local Sikh Temple.

17.  He fled to his friend’s place some 20 kilometres away and hid there for two or three days.  He called his grandparents and learnt that his father and other family members never arrived the grandparents’ home.  He has lost contact with them since.  He feared that they had been killed by the local Sikh villagers.  Then he flew to Hong Kong. 

18.  After arriving in Hong Kong, his friend told him that Suba and his men were still looking for him.  He claims that state protection would not be available because he did not believe the police would get involved with ADP.  He did not believe relocation within India was feasible as the local Sikh people had a good and powerful network all over the country.

19.  In view of the low intensity and frequency of past ill-treatment from Suba and his men, the Director considered the Applicant would not face any significant risk of harm upon his return to India.  He also considered that adequate state protection was available and internal relocation feasible.   Hence, he refused his claim for protection.

The intended subsequent claim

20.  In his request for making a subsequent claim dated 11 April 2023, the Applicant gave the following reasons for making a subsequent claim:

“… I will be killed by Mr SUBA Singh and his men because I changed my religion from Sikh to Christian. Therefore, I want to stay in Hong Kong to apply and wait for the result of my non-refoulement claim. I don’t want to go back to India. Nobody knows that I sneaked to HK. I didn’t take up any employment.”

21.  Upon receipt of his request, the Applicant was informed of the availability of publicly-funded legal assistance provided by the Duty Lawyer Service (“DLS”) and the requirements for making a subsequent claim, including submission of supporting evidence.  Then, by a letter dated 11 May 2023, the Director reminded the Applicant to provide evidence in writing in respect of his request on or before 25 May 2023.  Despite a reminder with extension of time to 13 June 2023, the Applicant did not provide any further evidence.  In the reminder, the Applicant had been reminded that the Director would assess his request on the basis of all the available information if the Director did not hear from him on or before the extended time.

22.  The only reason or evidence in support of his fear of harm as stated in his request which has been quoted in the above paragraph is that he will be killed by Suba and his men because of his conversion to Christianity.  The Applicant’s feared harm and risk of harm under the intended subsequent claim are the same as those in his previous claim.  They came from the same source, Suba and his men.  They arose from the same cause, the Applicant’s conversion.  The nature of the feared harm is the same death threat.  Having considered his request on all available information, including the finding of the immigration officer in his previous claim, the Director found the Applicant had produced insufficient evidence to substantiate his claim that Suba and his men will harm him or will still be going after him in India.  His fear and risk of harm are just his bare assertions not supported by any new and reliable evidence which could not advance his request.  In addition, there is no new and substantial evidence to refute the finding of availability of state protection and feasibility of internal relocation to lower or negate his perceived fear and risk.  Hence, the Director came to the conclusion that his current alleged risk of harm, if any, does not amount to a significant change of circumstances since his previous claim was finally determined or withdrawn; and refused his request to make a subsequent claim.

The legal principles applicable to judicial review

23.  The function 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.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[5].  Thus, absence specific grounds or grounds with sufficient particulars, the Court would focus its attention on possible criticism of the Decision on the basis of error of law, unreasonableness and irrationality.

Grounds for judicial review

24.  The Applicant advanced the following four grounds of application in his Form 86:

(1)  the Decision was not reasonable and unfair;

(2)  the Applicant’s right to life is protected under the Basic Law and BOR 2 Risk ground;

(3)  the Director failed to give proper weight to the presence of state acquiescence, leading to an unfair result; and

(4)  the Director’s attitude was unfair in failing to take such argument into account or to give it enough weight.

25.  The remaining subject matter for the intended judicial review is the 2023 Decision.   However, these grounds are obviously directed at the 2016 Decision, which the Applicant had in mind to review when he filed the Form 86 and he thought a review of the 2023 Decision was unnecessary.  Thus these grounds have no bearing whatever on the 2023 Decision refusing the Applicant’s request for making a subsequent claim. After having been explained the legal principles in paragraph 22 above, the Applicant confirmed he had no complaints about procedural unfairness and irrationality in the 2023 Decision and would leave the issue of errors of law for the Court.

26.  Having rigorously examined the 2023 Notice, the request, the Statement and the evidence with anxious scrutiny, the Court was satisfied that the immigration officer had correctly set out the law and key legal principles relating to the making of a subsequent claim under section 37ZO; correctly identified the issues; and properly analysed the evidence. The immigration officer observed a very high standard of fairness.  He advised the Applicant on the law and procedure in prosecuting his request and the availability of the DLS, though subsequently DLS declined to represent him.  The Applicant repeatedly ignored the immigration officer’s request for supporting evidence in relation to his intended subsequent claim.  On any objective view, there was no new evidence or new interpretation of the existing evidence which could support a change in circumstance as to entitle the Applicant to make a subsequent claim. It was on that basis that he found the change in circumstance when taken together with the material previously submitted in support of the previous claim would not give the intended subsequent claim a realistic prospect of success. 

27.  These are finding of facts which are exclusively within the province of the Director to make, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  This Court could detect no error of law in the Decision. The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success. 

Conclusion

28.  For the above reasons, leave is granted to amend the Form 86 to include an intended review of the 2023 Decision, extension of time to file the leave application in respect of an intended review of the 2016 Decision and the Applicant’s application for leave to apply for judicial review of the 2016 Decision and 2023 Decision 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