DAS APURBA KUMAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 595/2017

[2019] HKCFI 1502

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 595 of 2017

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 the Applicant being present / absent in open court;

1.  an extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board made on 28 February 2017 refused; and

2.  leave to apply for Judicial Review dismissed.

It is further directed that:

3.  if the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he/she must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

4.  when filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

5.  the court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

6.  if the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

7.  liberty to apply.

Observations for the Applicant:

1.  The applicant is a 33-year-old national of India who entered Hong Kong illegally on 26 August 2009 and was arrested by police on 28 August 2009.  After being referred to the Immigration Department for investigation, he lodged a torture claim with the Department on the basis that if he returned to India he would be harmed or killed by the terrorist group Maoist communist party (“Maoist”).  He has since been released on recognizance pending the determination of his claim. 

2.  The applicant was born and raised in Village Patuli, Nadia, West Bengal, India where his father used to run a small business dealing in buying and selling rice paddies in the village.  After leaving school he assisted in his father’s business, but in 2000 his father lost his business to a flood which ruined all the rice paddies.  The applicant therefore found another job working as a welder in Midnapore in West Bengal.  He had no affiliation with any political or religious groups or parties nor supported any politics. 

3.  One day in 2005 he was abducted by some Maoists in Midnapore and was brought to a place where he together with other men were forced to work in the field, and when he later refused to join the Maoists to carry out terrorist activities including attacking and kidnapping government officials and members of other political parties, he was locked up in a small room where he was tortured and threatened to be killed until one night when he managed to escape with the help of others and made his way to Kolkata and eventually back to his home village.

4.  For the next several years he had no further encounters with the Maoists until early 2009 when he heard that some of them were looking for him in his village, he therefore moved out of his home to hide in his friend’s place until March 2009 when he moved to Suravisthan with his father and later married his wife there, but when the Maoists came looking for him in Suravisthan, he realized that it was no longer safe for him to remain in India, and so he went to Kolkata to make arrangements to leave India which he did on 1 July 2009 for Hong Kong, but when he was refused entry and repatriated to India, he left again on 24 August 2009 but this time for China and from there he sneaked into Hong Kong and subsequently lodged his torture claim which was later taken as a non-refoulement claim under the Unified Screening Mechanism, for which he completed a Non-refoulement Claim Form (“NCF”) on 30 January 2015 and attended screening interview before Immigration Department with legal representation from the Duty Lawyer Service.

5.  During his stay in Hong Kong the applicant was able to keep in contact with his wife and learnt that since his departure from India, the Maoists had kept looking for him by coming to his home in Suravisthan, and threatened his wife to disclose his whereabouts as they believed that he had taken away some important files from them when he escaped from their detention, and when she refused they also abducted her and threatened her until she told them that the applicant had fled to Hong Kong and that she would go to Hong Kong to retrieve the files from him for them, to which the Maoists agreed and released his wife.

6.  In February 2013 his wife came to Hong Kong as a visitor to meet up with the applicant who denied ever taking those files from the Maoists.  His wife stayed for three days before returning to India after receiving news that the applicant’s father had become ill.

7.  One day in March 2013 the Maoists came looking for his wife, but when they refused to accept her explanation that the applicant did not take their files and pointed a gun at her head threatening to kill her, his father stepped forward and tried to protect her but fell, and during the commotion his wife managed to escape and fled to her aunt’s place in Kolkata where she departed in late March 2013 for Hong Kong, and when she overstayed she also lodged a non-refoulement claim and was released on recognizance pending determination of her claim when she stayed with the applicant.  On 16 July 2014 she gave birth to their son in Hong Kong, and on 30 January 2015 she completed a NCF for herself and their son (collectively “his family”) on the same basis as the applicant and that it was agreed that their claims be considered together.

8.  By a Notice of Decision dated 20 October 2015 the Director of Immigration (“the Director”) rejected the claims of the applicant and his family on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap 383 (“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”).

9.  In his decision the Director took into account of all the relevant circumstances of the claims of the applicant and his family that there are no substantial grounds to believe that the risk of harm upon him and his family perceived upon their return is likely to materialize after all these years when they would not be targeted by those Maoists, that the Indian government has since taken significant military actions against the Maoists with structured police forces in place in the country, that in the circumstances state and police protection would be available to the applicant and his family 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 and his wife both as able-bodied adults with work experience to move with their son to other area away from their home district such as Delhi or Mumbai where it would be difficult if not impossible for those Maoists to locate them.

10.  By a Notice of Further Decision dated 13 December 2016 the Director again rejected the claims of the applicant and his family in the absence of any response from them to an earlier invitation to submit any additional facts which may be relevant to their 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”).

11.  By then the applicant and his family were already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, which appeal they filed on 2 November 2015, and for which they attended two oral hearings on 15 November 2016 and 12 January 2017 before the Board during which only the applicant gave evidence and answered questions put to him by the adjudicator for the Board but his wife declined to do so.  On 28 February 2017 their appeal was dismissed by the Board which also confirmed the decisions of the Director.

12.  In its decision the Board upon hearing the applicant in evidence found him a highly unreliable and dishonest witness, that he has lied about a number of matters relevant to his claim and that his conduct was inconsistent with the allegations he had made and the harm he claims to fear if refouled to India, that it did not have the opportunity of testing the credibility of his wife but found her conduct also inconsistent with the allegations of her claim, that it was satisfied that neither the applicant nor his wife have established that there is any real likelihood that they or their son would suffer the harm they claim to fear if they return to India, and that in any event there are places in India outside their home district and areas where the Maoist insurgency is prevalent that the applicant and his family can safely and reasonably relocate such as Delhi or Mumbai.  

13.  On 7 September 2017 the applicant filed his Form 86, in which he was named as the only applicant without his wife or his child, for leave to apply for judicial review of the decisions of the Director and the Board, but no ground for seeking relief was given in the Form, nor in his supporting affirmation of the same date where he merely repeated his claim as follows:

“ I have to tell that the petition teams (security bureau) never test my case, because I have many life threats in my country they are belong to two political parties, if I go to my country now sometime I can lose my life too and I was worried and I am living with my wife here and I have a child he was born here in Hong Kong. I petition court now give me the time to submit my supporting document in the future I can submit but they never gave me the time I seeking protection for my wife and child until finish my problem in my country Exhibit 1 (1) page Exhibit 2 (1) page Exhibit 3 (1) page Total 3 pages.” [sic]

14.  The three pages of exhibits to the applicant’s affirmation are respectively the notice from the Board of its decision, a copy of his child’s birth certificate, and a copy of his marriage certificate.  The latter two documents had in fact already been submitted earlier before the Director as part of his documents in support of his claim, and the fact of his marriage with a child born in Hong Kong were never disputed and were accepted as part of his claim by both the Director and the Board in their consideration of his claim.  As such I fail to see how they would advance his case any further in his intended challenge against their decisions.

15.  However, by then the applicant was more than three months late with his Form 86, as Order 53, rule 4(1) of the Rules of the High Court, Cap 4A requires that an application 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.

16.  The time for filing the Form 86 in the present case expired on 28 May 2017.  The applicant failed to do so until more than three months later on 7 September 2017.  He has never filed any application for extension of time nor provided any explanation for such inordinate delay, but nevertheless I should proceed to consider whether he has any merit in his intended challenge: see Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration & Anor CACV 63/2015.

17.  The crucial question on the merit of the intended application is whether an applicant can show that there is a reasonable prospect of success in persuading the court that there are errors of law or procedural unfairness or irrationality in the decisions of the Director or the Board: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246; and Re Masoom Parvez [2018] HKCA 163. 

18.  Here the applicant as noted above did not put forward any ground in his Form 86, and in his supporting affirmation the only discernable complaint appears to be his claims of not been given time to submit his supporting documents, and that he now wishes to be given further time to do so but without providing any particulars as to what further documents that he would like to submit in support of his claim.

19.  The applicant had been made aware of the need to have documents to support his claim since his presentation of his NCF in January 2015 with the assistance of a lawyer when a Notice dated 1 September 2014 from the Immigration Department already set out the time limit for lodging such documents.  He also had had further opportunities to do so in his appeal to the Board including at the oral hearings held more than two years later. Even now in his leave application there is no indication of what further documents that he intended to submit.

20.  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, and in the light of the findings by both the Director and the Board on state protection and internal relocation which the applicant has not challenged, I am unable to find any merit in his intended challenge. 

21.  For these reasons and as I do not see any prospect of success in the applicant’s intended application for judicial review, I will not grant any extension of time, and accordingly his leave application is dismissed.

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