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

HCAL 297/2021

[2021] HKCFI 1429

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 297 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;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review of the Decision dated 11 October 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).  His application filed on 8 March 2021 is late.  I shall deal with this issue below.

2.  He is now being detained in the Castle Peak Bay Immigration Centre.

3.  The applicant did not ask for a hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application on paper.

4.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.

The applicant

5.  The applicant is an Indian national.  He had twice attempted to enter Hong Kong from Macau and was refused entry by the Immigration Department.  On 28 May 2014, he came from Macau again.  When he was refused permission to land, he raised a non-refoulement claim with the Immigration Department.

6.  He claimed that if refouled, he would be harmed or killed by his girlfriend’s father Jassa and her brother, Garry because they disapproved of their relationship.

7.  He was in love with a girl called Mandeep, but they are of different castes.  He was poor whilst Mandeep’s family was rich.  Things happened between October 2013 and May 2014 after their relationship was discovered by Jassa and Garry and they planned to elope.  In order to keep him away from Mandeep, Jassa and Garry together with some people went to the applicant’s house.  They told him to keep away from Mandeep and leave the village.  They assaulted him with wooden sticks for about 5 minutes.  He was injured with swellings and bruises all over his body.  His leg was bleeding.  He reported this incident to police, but they refused to file the case.  That was the first incident.  The second incident happened in February 2014.  Jassa and Garry went to his house with 4 unknown men.  They slapped his face and punched his back with bare hands.  They threatened him to leave the place and they would kill him if they saw him again.  Mandeep advised him to leave India because Jassa and Garry planned to kill him.  With his friend’s help, he fled first to Thailand, then to Macau from where he came to Hong Kong.  Details of his story are set out in paragraphs 7-42.

The Director’s Decisions

8.  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”).

9.  By Notice of Decision dated 12 September 2014 (“the Director’s Decision”) and Notice of Further Decision dated 10 May 2017 (“the Director’s Further Decision”), the Director refused his claim for the reason that his claim was not substantiated.  The Director found that the level of risk of him being harmed or killed by Jassa and Garry if he returned to India was assessed to be low [59]; that state protection would be available to him [64] and internal relocation was an option open to him [65-66].  In paragraph 6 of the Director’s Further Decision, the Director found that he failed to establish that there was personal and real risk he was subject to BOR 2 risk.

The Board’s Decision

10.  The applicant appealed against the Director’s Decisions.  The Board decided not to hold a hearing for him.

11.  By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decisions.  The Board, having considered his journey from India to Hong Kong and his behaviour in Hong Kong as a whole, found that he did not come to Hong Kong for protection from danger to his life as he came to Hong Kong as a visitor [10]; that it did not believe that Jassa and Garry were influential on a nationwide scale [12]; that his evidence on his injuries was exaggerated [23]; that he failed to substantiate that there were substantial grounds for believing that he would be in danger of being subjected to torture [37]; that police protection should be available to him [46]; that he failed to substantiate that he would be subjected to torture under BOR 3 risk [49]; that he failed to establish there were BOR 2 risks  to him [54]; that he failed to establish that he was subjected to Persecution risk [56].

Application for leave to apply for judicial review

12.  The applicant filed Form 86 on 8 March 2021 for leave to apply for judicial review of the Board’s Decision.

13.  In his affirmations in support of his application, he enclosed the Director’s Decisions and the Board’s Decision without specifying what errors he considered the Board had committed in coming to its decisions.

DISCUSSION

14.  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.  I shall first consider the merits of the applicant’s case.

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

16.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13.… …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.”

17.  His grounds in support of this application do not assist his application.  Since the Board has rejected his evidence, he has no factual basis in support of his claim.

18.  The Court does not find any error of law or procedural unfairness in the Board’s Decision.  The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

19.  There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.

CONCLUSION

20.  I therefore refuse to extend time for the applicant to apply for leave 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