JAGJIT SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 927/2020

[2025] HKCFI 2856

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 927 OF 2020

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicant or counsel in open court;

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, the name of the putative interested party be amended to “Director of Immigration” and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 3 March 2016”.

2.  The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 18 May 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the “Appeal decision of Torture claim Immigration Dept Decision on U.S.M. claim 03-05-2020”. There was in fact no such decision made by the Torture Claims Appeal Board (“the Board”) or the Director of Immigration (“the Director”) on 3 May 2020.

2.  The applicant annexed a copy of the decision of the Board dated 3 March 2016 (“the Board's Decision”) in his supporting affirmation dated 18 May 2020. It is clear that the applicant was referring to the Board’s Decision in the Leave Application. The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000927_2020_files/the_Board's_Decision.pdf

3.  The Board found that the applicant had not substantiated a case on any of the applicable grounds under the Unified Screening Mechanism (‘the USM”), namely Torture Risk[1], BOR 3 Risk[2] and Persecution Risk[3], but BOR 2 Risk[4] was not assessed then. The Board dismissed the applicant’s appeal/petition against the decision of the Director dated 23 December 2014 (“the Director’s 1^st Decision”), which rejected the applicant’s non-refoulement claim, and the Director’s 1^st Decision was confirmed.

4.  After the Director’s 1^st Decision was made, by a letter dated 22 February 2017, the Director invited the applicant to submit additional facts relevant to his non-refoulement claim including BOR 2 Risk, but there was no reply from the applicant. The Director then made a further decision dated 19 October 2017 (“the Director’s 2^nd Decision”) to deal with the applicant’s absolute and non-derogable rights under the Hong Kong Bill of Rights, including BOR 2 Risk, but considered that the applicant had failed to establish such rights being violated.

5.  The applicant did not appeal/petition against the Director’s 2^nd Decision, and hence there was no further decision made by the Board. The Leave Application is confined to the Board’s Decision only.

Amendments

6.  In Form 86, the applicant named “Immigration dept” and “Torture Claim Appeal Board” as both the putative respondents and the putative interested parties. In fact, only the Board should be named as the putative respondent, and only the Director should be named as the putative interested party.

7.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board” and the name of the putative interested party is amended to “Director of Immigration”.

8.  As aforesaid, the decision in respect of which relief is sought in the Leave Application should be the Board’s Decision, and it is so amended on this court’s own motion.

Late application

9.  By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant has to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made.

10.  However, the applicant filed Form 86 only on 18 May 2020, which is more than 50 months from the date of the Board’s Decision. The applicant was therefore late for more than 47 months in making the Leave Application.

11.  This court has to consider whether the time for the applicant to make the Leave Application should be extended taking into account of the criteria laid down in AW v Director of Immigration [2016] 2 HKC 393, which are:

(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.

12.  The applicant did not make any application for extension of time and provided no explanation for the delay in making the Leave Application. A delay of more than 47 months is very substantial. There is absolutely no justification for the delay when no explanation was given. There is also no merits of the intended judicial review as discussed below. Having considered the above criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application, even if an application for extension of time was made. The Leave Application can therefore be dismissed on the ground of being made out of time alone.

13.  However, for the sake of completeness, this court will still examine the merits of the Leave Application.

The applicant’s case

14.  It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

15.  In sum, the applicant claimed for non-refoulement protection because he would be in danger if refouled to India. He had been beaten by 4 policemen in 1998 who forced him to confess that he had killed two persons in a traffic case, but he was not the driver. Further, the applicant feared being killed by the relatives of the 2 persons killed in the traffic case (“the Relatives”).

Grounds for judicial review

16.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

17.  However, the applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 18 May 2020. He merely stated in the affirmation that he was not satisfied by the decision of immigration.

Discussion

18.  The role 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. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

19.  Thus, despite that the applicant did not advance any valid ground for the intended judicial review, this court will still examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irregularities.

20.  In assessing the applicant’s claim, the Board adopted the approach of a re-hearing by examining all the documentary evidence afresh, although there was no oral hearing held. The Board was satisfied that in all circumstances of the case, there would be no procedural unfairness to the applicant if his appeal/petition was determined without an oral hearing, as the Board accepted all the evidence adduced by the applicant and there was no question of credibility to decide.

21.  As held by the Court of Appeal in St v Betty Kwan and the Director of Immigration, CACV 115/2013, there is no absolute right to an oral hearing and the question of whether an oral hearing should be afforded must be decided by the adjudicator at the petition stage after considering all relevant circumstances. Ultimately, what is in issue is the question of fairness, and in the present context, high standards of fairness are involved.

22.  Since the Board accepted all the evidence adduced by the applicant and there was no question of credibility to decide, this court agrees with the Board that no oral hearing was necessary in the applicant’s case.

23.  On the evidence adduced, the applicant had never sustained a level of severe pain and suffering. In fact, the police had dropped all the charges against the applicant. The purpose for inflicting harm to the applicant therefore no longer existed. The applicant encountered no problem with the police since in or about February 1999. The Board therefore found that the applicant had failed to establish that he would be harmed by the police should he return to India.

24.  Moreover, the applicant did not report or complain these policemen to the higher officials of the police station, any other police station or authorities of the Indian government. The acts of the four policemen were individual acts. There was no evidence to show that the individual acts were accepted or tolerated by the Indian government. The Board found from reliable country of origin information (“COI”) that there were channels to lodge complaints against the police. In addition, though COI showed that there were corruptions in Indian police, the Indian government had taken steps to improve the performance of the police. It was clear to the Board that state protection was available and would be effectively provided should the applicant need it.

25.  As to the threat uttered by the Relatives, the Board found that it was a private matter in nature. The purpose was to take revenge from the applicant. There was no evidence to show that the Relatives had any connection with the police or any officials of the Indian government. In any event, the Relatives had only threatened the applicant. The applicant was never harmed by the Relatives before he left India. The applicant admitted it was only his speculation that the accident he encountered in 2008 (which was 10 years after the fatal traffic accident) while driving his motorcycle was the act of the Relatives. There was no evidence to show that this incident was related to the Relatives at all.

26.  It is clear that in deciding the case, the Board relied on all the written evidence presented by the applicant. Having an oral hearing would not help the applicant any further at all. Thus, this court agrees that there was no unfairness to the applicant by not having an oral hearing.

27.  After due consideration of the law and the evidence as presented by the applicant, the Board found that there was no risk of torture for the applicant to return to India. There was also no real risk of ill-treatment or risk of persecution. The Board hence reached the conclusion that the applicant was not entitled to non-refoulement protection under any of the applicable grounds (except BOR 2 Risk, which was subsequently dealt with by the Director as aforesaid).

28.  Although the Board did not make any findings on internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that he qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). In other words, internal relocation only arises if the applicant has established a real risk of persecution in his home area (see Gardi v SSHD [2002] 1 WLR 2755).

29.  As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to consider internal relocation.

30.  The assessment of evidence, COI and risk of harm were primarily within the realm of the Board. The Board is entitled to come to its own conclusion. If the applicant is seeking to challenge the Board’s finding of facts, it is not permissible in an application for judicial review. This court finds no reason to usurp the fact-finding power vested in the Board.

31.  Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

32.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be a reasonably arguable claim which enjoyed realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

33.  For reasons aforesaid, the Leave Application is dismissed for being made out of time and also for devoid of merits.

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