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

HCAL 1600/2018

[2020] HKCFI 2051

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1600 OF 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Leave to apply for judicial review be granted.

Observations for the Applicant:

Procedural history

1.  The applicant entered Hong Kong legally on 23 October 2013, but was refused permission to land and was detained.  He raised a non-refoulement claim by way of written representation on the same day.  His non-refoulement claim form was submitted on 11 May 2015.

2.  The applicant attended a screening interview on 5 August 2015.  The Director of Immigration (“the Director”) dismissed his claim on all grounds (not including that under BOR 2) by Notice of Decision (“the Decision”) on 26 August 2015 and by Notice of Further Decision (re BOR 2) (“the Further Decision”) on 14 February 2017.  He appealed the Decision (“the Original Appeal/Petition”) to the Torture Claims Appeal Board (“the TCAB”) on 14 October 2015, which was 34 days late.  The adjudicator of the TCAB, Mr Wesley Wong (“the Adjudicator”), dealt with his Original Appeal/Petition on the papers as it was submitted late and for the reasons given, his application for leave to file his appeal/petition was dismissed on 31 December 2015.  Thereafter, the applicant sought to appeal the Further Decision in respect of BOR 2 (“the Further Appeal/Petition”), which was also dealt with on the papers by the same Adjudicator and was dismissed on 30 July 2018.

3.  The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 10 August 2018 and did not request an oral hearing.  The matter was therefore considered on the papers.

Background

4.  The applicant is an Indian national.  He was born on 8 March 1987, in the Punjab.  He is a Jatt Sikh.  He received formal education up to Class 12 and thereafter worked as a farmer on family land between 2004 and 2013.  From 2009, the applicant had been a supporter of the Indian National Congress party (“INC”).  The Shiromani Akali Dal party (“SAD”) were the opposition party and were in power at that time.  In 2013, the applicant says he was attacked by members of SAD with an iron bar and suffered an injury to his head for which he received private treatment including sutures.  Although the applicant tried to report the incident to the police, they would not record his complaint.  During that month, the applicant states that he received numerous threatening phone calls seeking to persuade him to leave the INC and join the SAD.  These calls were not reported.  Because the applicant was in fear he fled to a relative’s home but still received threatening calls and so he decided to come to Hong Kong.

The non-refoulement claim

5.  Under the Unified Screening Mechanism (“USM”), the applicant’s claim is to be assessed on all applicable grounds which are:

i.  Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”).  Under torture risk, the applicant must establish he has substantial grounds for believing he will be subjected to torture if returned to his home state.  Those grounds cannot be speculative or theoretical and the risk of torture must be real and personal.  The standard of proof is a low one.

ii.  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 (“the HKBORO”), Cap 383 and Article 7 of the ICCPR (“BOR 3 risk”).  Under BOR 3, the applicant must establish that he has a genuine and substantial risk of being subject to mental or physical torture; cruel, inhuman or degrading ill treatment; or punishment, if returned to his home state.  The level of such mental or physical torture etc. must reach a minimum level of severity.

iii.  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”).  Under persecution risk, the applicant must establish that he has a well-founded fear that there is a real chance that he will face persecution based upon race, religion, nationality or membership of a social group or political opinion if he is expelled and returned to his home state.

iv.  Risk of a violation of the right to life under Article 2 of Section 8 of the HKBORO, Cap 383 and Article 6 of the ICCPR (“BOR 2 risk”).  Under BOR 2, the applicant must establish a real risk that he will be arbitrarily deprived of his life, have a death penalty imposed upon him; or be the victim of genocide or otherwise be deprived of his rights under BOR 2.

6.  It is the duty of both the Director and the Adjudicator to weigh all of the available credible, reliable evidence and ascertain whether the applicant had established the factual basis of his claim. The Director and the Adjudicator must then assess the level of harm the applicant says he fears.  Each ground of claim above has a relevant level of risk.  It is for the applicant to establish that he is the subject of such risk.  Under the HKBORO, he must show substantial grounds for believing that the harm which he fears is “foreseeable, real, personal and present”.  The question is whether there is a real risk or real chance of the occurrence or recurrence of the harm which he fears.

Decision of the Adjudicator

7.  This application is against the Adjudicator alone.  He had initially dismissed the applicant’s appeal/petition as being out of time and thereafter, dismissed his further appeal/petition as the applicant had not stated the basis of his appeal save that he wished his case be considered again.

Original Appeal/Petition

8.  As to the Original Appeal/Petition, the Adjudicator made a number of findings in his two‑page Decision:

a.  There was deemed service of the Decision of the Director upon the applicant by reason of him being represented by the Duty Lawyer Service (“the DLS”) and the Decision had been sent to the DLS.

b.  The applicant had complied with Section 5 of the Notice of Appeal/Petition in so far as he had said:

“I, Harpreet Singh – please forgive me as I am submitting my appeal late. Because I was not aware that my case had finished. Neither did I get a letter, nor did I receive a call. On 13 in October, I went to Mau To Kok for signatures. I apologise. Thanks.”

c.  No documentary evidence was submitted in support of that statement.

d.  That statement was a bare allegation.

e.  It was open to the applicant to obtain a statement from the DLS to support his claim.

f.  He had no valid excuse.

g.  The delay was inordinate.

9.  There is no reference to whether the DLS accepted that they had in fact served the Decision upon the applicant.  There is a letter dated 4 September 2015, in which the Director informs the applicant that the DLS had withdrawn from representing him because they had received no instructions.  However, there is no documentary confirmation as to whether they were able to effect service upon the applicant. The Director sent a further copy of his letter of 26 August 2015 under cover of his letter of 4 September 2015 and indicated he would forward a copy of that Decision in the applicant’s own language.  The court has been provided with a copy of that further document but, as it is in Indian, cannot ascertain upon what date it was sent to the applicant, such that he was in a position to be able to submit an appeal/petition.  As the letter in English was dated 4 September 2015, one can only presume that the Decision in Indian would have been sent at a later date.  Without reference to when the applicant received that document, the Adjudicator fixed upon the 14‑day deadline from 26 August 2015 which was 10 September 2015.  As his Notice of Appeal/Petition was filed on 14 October 2015, he found him to be 34 days late in filing, which is technically correct but no steps were taken to find out whether the applicant had received the original Decision either directly or from the DLS nor at what stage he had received a document he could understand given that the Director knew that he was no longer legally represented.

10.  I am not sure whether the Adjudicator meant that service upon the DLS itself was deemed good service but that, at first blush does not seem fair to the applicant.  It further appears, from paragraph 9 of his Decision, that the Adjudicator was of the view that the onus was on the petitioner to prove that he had not been served by the DLS.  I am not quite sure how an Indian national refugee claimant would necessarily know this.  On the other hand, it would have been fairly easy to obtain confirmation of service from the DLS by the Adjudicator if, as was the case, the Adjudicator was intending to dismiss his application for late filing.

Further Appeal/Petition

11.  As to the Further Appeal/Petition, the Adjudicator did not indicate whether he had before him anything other than the letter from the Director dated 26 January 2017 and the Further Decision of 14 February 2017 under which his BOR 2 claim was dismissed on the basis that he had failed to make any further submissions under this head of claim, when invited to do so.  The Director, as is his practice, could do no other than rely upon the claim as it stood on the papers and came to the determination that the claim under BOR 2 had failed.  It is for the Adjudicator to consider the claim afresh.  Whilst he set out the law in respect of BOR 2, he does not appear to have considered the facts of the applicant’s claim at all.  Indeed, he appears to have relied solely upon Section 2 of the Notice of Appeal/Petition and focused upon that rather than whether there was any basis for a claim under BOR 2 in his original non-refoulement claim.  If the Adjudicator had all of the papers before him and had considered those papers under this head of claim and come to the conclusion that the claim had failed, he could not be criticised for such a determination.  However, there is no evidence that this is what he did.

Leave to apply for judicial review

12.  Judicial review is not a rehearing of the merits of the applicant’s original application for refugee status.  The primary decision makers in a claim for non‑refoulement are the Director and the Adjudicator of the TCAB.  They alone assess the evidence and make findings of fact upon matters raised by the applicant and which allegedly give rise to his non-refoulement claim, such as on risk of harm, availability of state protection and viability of internal re‑location.  The role of this court in judicial review is not to re‑assess the non-refoulement claim.  This court will review the decision of the Adjudicator and only intervene by way of judicial review where it finds errors of law, procedural unfairness or irrationality.  It is for the applicant to show an arguable case that there was either unlawfulness, unreasonableness or unfairness by those bodies or persons when dealing with his application in order to obtain leave to judicially review them.

Grounds of review

13.  There were no grounds of review.  The applicant seeks a re-hearing of his appeal.  He has not complained of any procedural irregularity, unfairness or unreasonableness.  The applicant has a duty to state the grounds of his intended judicial review and show that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.  I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

14.  Despite the fact that the applicant did not submit any grounds of review, due to the seriousness of the issues at hand, I have considered the papers carefully.  I have looked in particular inter alia, into the suggestion that the applicant was, or may have been, prejudiced by non-receipt of the original Decision dated 26 August 2015 and also the manner in which his appeal from the Further Decision was handled.  In the absence of any indication that the DLS confirmed service upon the applicant and also in the absence of any indication as to whether the Adjudicator considered the underlying material to ascertain for himself whether there was a claim under BOR 2, I consider there may be an arguable basis upon which the applicant could found a claim for judicial review of the original or further decision of the Adjudicator and, as such, there may be a realistic prospect of success if he were to be granted leave.  I therefore grant leave for judicial review.

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