PAL JITENDER v. TORTURE CLAIMS APPEAL BOARD

HCAL 2709/2018

[2021] HKCFI 2521

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2709 of 2018

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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

1.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 5 August 2015 refused; and

2.  the application for leave to apply for Judicial Review dismissed.

Observations for the Applicant:

1.  The Applicant is a 36-year-old national of India who arrived in Hong Kong on 16 February 2015 but when he was refused entry by the Immigration Department, he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by certain local supporter of rival political party Aam Aadmi Party (“AAP”). He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Jawahar Colony, Faridabad, Haryana, India. After leaving school he worked as an electrician in Faridabad, and supported the political party Bharatiya Janata Party (“BJP”) regularly attended their local meetings and rallies.

3.  In late 2014 the local leader of AAP, Avtar Singh approached the Applicant for his support of AAP, but when the Applicant refused, Avtar Singh left angrily with a warning that he would find ways to make him change his mind. and after having been assaulted on several occasions by some unknown men whom he suspected were sent by Avtar Singh, the Applicant became fearful for his life, and so on 16 February 2015 he departed India for Hong Kong, and when he was refused entry he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 20 March 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

4.  By a Notice of Decision dated 21 April 2015 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Ordinance”) (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

5.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from Avtar Singh and his men upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that there is no reliable evidence that the Applicant had been specifically targeted for harm and that after all these years that it is doubtful that there would still be any adverse interest in him, that in any event in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in India with a large population of 1.2 billion people spread across a vast territory of more than 2.9 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of India away from his home district in other states as Chhattisgarh or Rajasthan or Maharashtra where it would be difficult if not impossible for Avtar Singh to locate him.

6.  On 7 May 2015 the Torture Claims Appeal Board (“Board”) received the Applicant’s Notice of Appeal filed against the Director’s decision which it found to have been late by one day outside the 14-day period required for filing under Section 37ZS(1) of the Immigration Ordinance but without containing any statement of reasons for the delay, and later on 18 May 2015 the Board received a revised Notice of Appeal from the Applicant with a statement of reasons for delay stated in section 5 as follows:

“I beg for your pardon for late submission of my appeal but the lawyer assigned to me had handed over the document, which said that my claim was rejected to me only on 23^rd Thursday. Earlier I had never written any appeal that is I tool 5 days to write my appeal. However, I had delivered my appeal to the Welfare Officer 7 days ahead, i.e. on 29^th., seven days in advance. Despite that, I am asking you for pardon for delayed submission of my appeal. Please accept my appeal for which I will be very much grateful to you.”

7.  It would also be of note that in section 2 of the Notice of Appeal, the Applicant just repeated his claim of fear of harm from Avtar Singh and his AAP followers for his grounds of appeal.

8.  Pursuant to Section 37ZT(2) of the Ordinance, the Board proceeded to decide as a preliminary decision without a hearing whether to allow the late filing of the Applicant’s Notice of Appeal.

9.  By a written notice dated 5 August 2015, the Board refused to allow the late filing of the Applicant’s Notice of Appeal upon finding his reason for his delay just a bare assertion unsupported by any documentary evidence which he could have easily obtained from his welfare officer that the decision was indeed given to him late, and that there is no merits in his appeal, as the Adjudicator explained in paragraph 8 of the Board’s decision:

“I have also gone through the Notice of Decision. It was just a dispute between him and Avtar Singh in respect of dispute over his refusal to join Avtar Singh’s Aam Aadmi Party because he was a supporter of Bharatiya Janata Party. The injuries he suffered, if any, was minor injuries. It was also not a case involving persecution risk. The Immigration Officer on behalf of the Director of Immigration had analysed his case in detail and fairly. I cannot find fault with the finding. The chance of success on appeal/petition is extremely slim.”

10.  Meanwhile on 19 January 2017 the Director on his own initiative invited the Applicant to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”), and in the absence of any response from him, the Director by a Notice of Further Decision dated 7 February 2017 rejected his BOR 2 Claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR including right to life under BOR 2 being violated upon his return to India.    

11.  The Applicant never brought any appeal to the Board against that further decision of the Director, and instead on 29 November 2018 he filed his Form 86 for leave to apply for judicial review of the Board’s decision of 5 August 2015 for refusing to allow the late filing of his Notice of Appeal against the Director’s first decision, and in his supporting affirmation of the same date he complained that he was not informed of the Board’s decision until later when he reported on his recognizance to the Immigration Department that he was so informed, and that it was unfair for the Board to dismiss his appeal without any oral hearing that he was not given any opportunity to present the proof for his appeal. He did not request any oral hearing for his application.

12.  The Applicant was clearly by then seriously out of time with his application, as Order 53 rule 4(1) of the High Court Ordinance, Cap 4 requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

13.  As the last day of the three-month period for him to file his Form 86 fell on 5 November 2015, the Applicant was therefore more than 3 years late with his application, and in considering whether to extend time, the court shall have regard to (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: AW v Director of Immigration [2016] 2 HKC 393.

14.  In the Applicant’s case, a delay of more than 3 years must be considered as extremely substantial and excessive, for which as noted above that he explained in his affirmation that he never received the Board’s decision until much later when he reported on his recognizance that he was informed by the Immigration Department.

15.  The Applicant did not provide any further details or particulars or documentary evidence to corroborate his bare assertions, but in his second and revised Notice of Appeal received by the Board on 18 May 2015, the Applicant did state that he was then being detained at the Castle Peak Bay Immigration Centre (“CIC”) (see Section 1: Personal Information (H) of the Notice of Appeal).

16.  After the Board made its decision on 5 August 2015, it seems from the covering letter of the same date from the Board which accompanied the decision that it was sent to the Applicant at an address in Tsim Sha Tsui in Kowloon. It is however not clear whether the Applicant had by then already been released from CIC on recognizance and had therefore moved to that address, or that the Board had mistakenly sent the decision to a former address where the Applicant no longer resided instead of to CIC where he might still be detained, and hence the decision never reached him as he so claimed until much later after his release on recognizance that he was only informed by his immigration officer as alleged.

17.  The onus is however clearly on the Applicant to prove that the decision did not in fact reach him through no fault of his including without any failure on his part to inform the authorities of any change of his address as soon as practicable, and in the absence of any further details or evidence provided by him to corroborate his assertions, I am not satisfied that he has discharged the burden.

18.  Furthermore, as it has been held by the Court of Final Appeal in H v Director of Immigration and AH v Director of Immigration [2020] HKCFA 22, FACV 1/2020 and FACV 2/2020 heard together, whenever there is a failure to act either promptly or within three months as required by Order 53 r 4(1) of the High Court Ordinance, there is “undue delay” in the making of the application for judicial review, and that depending on the context, a failure to challenge a particular administrative decision even in a shorter period than three months might constitute undue delay for not having been made “promptly” ([37(1)] of the decision).

19.  The context in the present case is for the Applicant to challenge the Board’s decision in refusing to allow the late filing of his Notice of Appeal which would otherwise be to commence the second tier of the screening process of his non-refoulement claim under the Unified Screening Mechanism (“USM”), which would to him be plainly one of momentous importance, and hence even if he indeed without fault had never received the Board’s decision as alleged, by the time when he received the Director’s Further Decision of 7 February 2017 which was sent on the same day to the same Tsim Sha Tsui address, the Applicant would have known by then, at the very least, that his appeal to the Board had been rejected on 5 August 2015, as the Director so stated in paragraph 2 of his Further Decision, and that the Applicant could have then filed his Form 86 for his present leave application instead of waiting for another 20 months until 29 November 2018 to do so. As such and for the reasons given, I am not satisfied that the Applicant has provided any good or valid reason for his such serious undue delay.

20.  As for the merits of his intended application, which is to review and challenge the Board’s decision in refusing the last filing of his Notice of Appeal, and while it seems unreasonably harsh to me that the Board refused to accept his explanation for his delay of just one day under the circumstances including his detention at CIC and being unrepresented, the fact is that the Board did also take into account of the merits of his claim and appeal, and in my view correctly found that there is no merit in his intended application as the prospect of success is extremely slim.

21.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

22.  Furthermore, in the Applicant’s case, the fact is that it has been established by the Director in his decision that the risk of harm in his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, a finding which the Board could not find fault in, there is simply no justification to afford the Applicant with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

23.  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

24.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good for his serious undue delay, I refuse to extend time and accordingly dismiss his leave 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