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

HCAL 1359/2021

[2021] HKCFI 3614

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1359 of 2021

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;

Order by Deputy High Court Judge K.W.  Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court (“RHC”), Form 86 is amended to the effect that the proposed respondent is the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”) and the Director of Immigration (the “Director”) is the interested party.

2.  This is the applicant’s application for leave to apply for judicial review of the Decision dated 16 January 2020 (on BOR 2 risk only) of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s BOR2 Decision”).  His application filed on 28 September 2021 is late.  I shall deal with this issue below.

3.  The applicant is now in custody of the Immigration Department and he did not ask for a hearing.  Pursuant to Order 53, rule 3(3) of the RHC, I shall deal with his application on paper.

The applicant

4.  The applicant is a citizen of India.  He entered Hong Kong as a visitor on 29 August 2010.  He overstayed and was arrested by the police on 13 December 2010.  He lodged a torture claim on 15 December 2010 which was subsequently taken to be a non-refoulement claim after the commencement of unified screening mechanism. 

5.  The applicant claimed that, if refouled, he would be harmed or killed by Balwinder Singh (“BS”) and Jatinder Singh (“JS”).  According to the applicant, he worked part time for the Member of Legislative Assembly and BS and JS were both members of Shiromani Akali Dal Party (“SAD”).  He claimed that they both had good relationship with the local police.  Starting in 2009, the applicant’s father had a land dispute with BS and JS.  They forcibly occupied the applicant’s family land.  Thereafter, BS and JS continued to harass and threaten the applicant and his family on eight occasions, during which, the applicant and his father as well as his brother suffered injuries in the second incident.  Out of fear, he eventually fled to Hong Kong for protection.  Details of his story are set out in paragraph 6 of the Director’s First Decision and paragraphs 2-4 of the Board’s Decision described below.

The Director’s Decisions

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

a.  risk of torture under Part VII C of the Immigration Ordinance, Cap.  115, (“the 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 Notice of Decision dated 28 May 2015 (“the Director’s First Decision), the Director refused his claim on Persecution risk, BOR3 risk and Torture risk for the reason that his claim was not substantiated.  The Director found that the level of risk of him being harmed or killed if he returned to India was assessed to be low [11]-[17]; that state protection would be available to him [18] and that internal relocation was an option open to him [19].  In the Notice of Further Decision dated 5 May 2017 (“the Director’s BOR2 Decision”), the Director also rejected his claim on BOR2 risk. 

8.  The Director’s First Decision and the Director’s BOR2 Decision will be referred to collectively as “the Director’s Decisions”. 

The Board’s Decisions

9.  He appealed against the Director’s Decisions to the Board. For his appeal against the Director’s First Decision, he attended an oral hearing on 23 August 2016, during which he answered the Board’s inquiries.  In the decision dated 8 March 2017, the Board found that the applicant failed to establish that there was state involvement [8]-[10]; that the applicant did not suffer severe pain or suffering to the extent of torture, even in the second incident [11]-[13]; that after considering the reasons at pages 12 to 20 of the Director’s First Decision and the relevant country of origin information, it agreed with the Director that the applicant could safely return to other cities in India [15]-[19].  Thus, the Board rejected the applicant’s claim on all applicable grounds independent of a lack of credibility.  Nevertheless, the Board also found that his late lodge of the non-refoulement claim undermined his credibility [31]-[33]. 

10.  As to the applicant’s appeal against the Director’s BOR2 Decision, by way of the Board’s BOR2 Decision, the Board noted that the applicant was late by 17 days in filing the notice of appeal [4].  It refused to accept the applicant’s explanation for the delay [7]-[8] and proceed to conclude that there was no justification to allow the late filing.  In any event, the Board stated that there would be no prospect of the appeal succeeding and dismissed the appeal [9]-[12].    

Application for leave to apply for judicial review

11.  The applicant filed Form 86 on 28 September 2021 for leave to apply for judicial review of the Board’s BOR2 Decision.

12.  In his affirmation in support of his application, he stated that he was not satisfied with the Immigration Department’s decisions.  It is still dangerous to return to his country.

DISCUSSION

13.  As mentioned in paragraph 1, this application is late.  In AW v.  Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted.  The delay is, of course, serious. However, I shall first consider the merits of the applicant’s case.

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

15.  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.”

16.  The Board was entitled to find that his filing of the notice of appeal was late and that the applicant’s explanation was unsatisfactory.  There is no issue on these facts. 

17.  When the Board considered his appeal against the Director’s Further Decision on BOR2 risk, it is apparent that the Board had born in mind its findings and decisions in its previous Decision in relation to the Torture risk, the BOR 3 risk and the Persecution risk because the applicant’s BOR 2 risk relies upon the same facts as for those risks.  Having considered its previous Decision, the Board concluded that there was no merit in his appeal on the Board’s BOR2 risk.  The Board was entitled to make such findings.

18.  He does not have any valid ground to challenge the Board’s BOR2 Decision. 

19.  The Court does not find any error of law or procedural unfairness in the Board’s BOR2 Decision.

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

CONCLUSION

21.  I therefore refuse to extend time for the applicant to apply for his intended 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