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

HCAL 2215/2018

[2022] HKCFI 1286

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2215 of 2018

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;

1.      Leave to apply for Judicial Review against the Board’s Second Decision be granted; and

2.      The applicant shall take out the originating summons within 14 days after the grant of leave in accordance with Order 53, rule 5(5) of the RHC.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review of the Decision dated 21 September 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Second Decision”), an appeal against the Director’s Second Decision on BOR2 risk.

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

3.  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

4.  The applicant is a national of India.  He first attempted to enter Hong Kong on 4 May 2015, claiming to visit a temple.  He was refused permission to land.  On 7 May 2015, he sought to enter Hong Kong again and this time claimed to lodge a non-refoulement claim.  Again, he was refused permission to land. By way of a written representation dated 8 May 2015, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by the local police as he was suspected to be affiliated with Hizbul Mujahideen (“HM”), a terrorist group.  On the other hand, he feared that he would be harmed or killed by HM members as they suspected him to be a police informant.

5.  According to the applicant, sometime between 2009 to 2012, he assisted the police investigations into the murders of his relatives.  He claimed that these murders were orchestrated by some militant groups, including HM.  Before July 2014, these militant groups monitored him as they suspected him to be a police informant.  In July 2014, two HM men holding AK47 rifles visited his house and asked for his whereabouts.  The applicant managed to escape to other village.  In August 2014, he was visited by these two men again and, while he fled, upon his return, he noticed that they took his money.  Thereafter, the applicant was taken to the police station and detained for being a suspect of the HM terrorist.  He was tortured by the police for a confession and was later hospitalized.  During his stay in the hospital, the HM members threatened him. The applicant then hid in his friend’s house.  In January 2015, the applicant returned home and found his friend had been injured by two unknown HM men.  Out of fear, he eventually fled to Hong Kong for protection.  Details of the applicant’s claim are set out at paragraph 6 of the Notice of Decision dated 3 August 2015 by the Director (the “Director’s First Decision”) described below.    

The Director’s Decisions

6.  The Director considered the applicant’s claim in relation to the following risks:

(1)     risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(2)     risk of violation of the right of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (“BOR 2 risk”);

(3)     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

(4)     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”).

7.  By way of the Director’s First Decision, the Director refused his claim on Torture risk, BOR3 risk and Persecution risk.  The Director refused to accept that the applicant would face real risk of harm upon refoulement because (i) the claimed risk of harm from the HM members was not supported by any evidence [13]; (ii) state protection would be available to him [14]-[18]; and (iii) internal relocation was an option open to him [19]. 

8.  For reasons set out at the Notice of Further Decision dated 15 February 2017 that there was no evidence to show that his right of life under BOR2 would be violated upon return, the Director also rejected his claim on BOR2 risk (the “Director’s Second Decision”).

The Board’s Decisions

9.  On 20 August 2015, the applicant filed a notice of appeal/petition against the Director’s First Decision.  He was three days late [5].  The Board noticed that the notice of appeal/petition was only received by the Board on 20 August 2015 despite the date thereon was 14 August 2015 [6]. 

10.  The Board refused to accept the applicant’s explanation as it was a bare assertion without documentary proof [8]-[11].  It also rejected the applicant’s statement that his English was weak and he had to rely on his friend to prepare the form.  The Board noticed that he was able to prepare the grounds of appeal himself and thus there was no reason why he could not do the same for his explanation of delay [12].  Thus, in the decision dated 17 November 2015, the Board refused to allow the applicant’s late filing of notice of appeal/petition against the Director’s First Decision (the “Board’s First Decision”).

11.  On 3 March 2017, the applicant appealed against the Director’s Second Decision.  The Board decided to exercise its discretion under paragraph 15 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme and disposed the appeal on paper.

12.  The Board considered the applicant’s grounds of appeal as stated at paragraph 8.  His main grounds set out under section 2 of the notice of appeal were that (i) his parents were shot dead and no police actions were taken; (ii) his house was destroyed by flood and his life would be in danger; and (iii) his home village was unsafe as it was controlled by Islamic religion and the applicant was a Hindu.

13.  The Board dismissed his appeal on the basis of the following findings:

“(i) The grounds he stated under sector 2 clearly do not engage BOR2 (ii) to (vi) in relation to death sentence and genocide.

(ii) Even if it is true that he does not have anybody in India, it does not mean that he cannot return to India.

(iii) His house being destroyed by flood is also not a reason for not going back to India.

(iv) He has not submitted any evidence to support his claim that Kashmir is a dangerous place for him being a Hindu to live in.

(v) it is a non-sequitur to say that his house having been destroyed by flood his life could be in danger and that he could be killed by his enemies. In any event he did not specify who his enemies were.” 

14.  As a result, the Board in its decision dated 21 September 2018 (the “Board’s Second Decision”) dismissed the applicant’s appeal against the Director’s Second Decision.

Application for leave to apply for judicial review

15.  The applicant filed Form 86 on 12 October 2018 for leave to apply for judicial review of the Board’s Second Decision.

16.  In his affirmation in support of his application, he said he is not safe in India.

DISCUSSION

17.  The issues before this Court are (i) whether the Board is correct not to hold a hearing for the applicant and disposed of the matter on paper and (ii) whether the Board had committed any error in making the decision as it had done.

18.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

20.  The applicant did not seek judicial review in respect of the Board’s First Decision, which has become final. Upon request by the Director, he did not submit further information for his BOR2 risk claim. In his notice of appeal, the applicant had raised ground (iii) that Kashmir is not safe because it is controlled by Islamic religion and he is a Hindu. The Board found that there was no evidence in support of this ground. In other words, the Board found this ground was incredible.

21.  If the Board had the issue of credibility of the applicant’s allegation or evidence, it is incumbent upon the Board to allow the applicant to appear before it to give evidence or clarify the issue for the Board.

22.  In St v. Betty Kwan, The Secretary for Security & The Director of Immigration [2014] 4 HKLRD 277, the Court of Appeal held:

“25. Thirdly, an opportunity to make “worthwhile representations” (Ex p Doody, at p 560G), or “effective representations” (West, at para 35), is an important requirement of fairness in most if not all situations. …

26. Fourthly, it does not follow from the requirement of an opportunity to make worthwhile or effectiverepresentations that there must be an oral hearing held before a decision is made. Put another way, there is no absolute right to an oral hearing. …

29. Fifthly, while the presence of material factual disputes which cannot be decided on paper is very often, if not invariably, a good and sufficient reason in itself for holding an oral hearing, …

30. The judge then, importantly, pointed out that the question of whether an oral hearing should be held is not to be decided by whether there are factual disputes, but whether an oral hearing “may well contribute to achieving a just decision”. …

40. Secondly, an adjudicator should ask himself whether there is anything in the torture claimant’s story, the evidence and information available, the legal issues raised, the arguments mounted, the decision of the Director, the written petition of the claimant, and so forth, which is material to the determination of the CAT claim, and which high standards of fairness would require the torture claimant to be given an opportunity to be heard orally (or further in writing), before a decision is made on the torture claim. …”

23.  From the above authority, it can be seen that the Board should have given the applicant an opportunity of attending a hearing to explain his allegations or to give evidence in support of his case, which the Board had failed to do. Its decision is therefore flawed both on an error of law and procedural unfairness.

24.  The applicant therefore has realistic prospect of success in his intended judicial review.

CONCLUSION

25.  I therefore grant leave to the applicant to apply for judicial review of the Board’s Second Decision. The applicant shall take out an originating summons within 14 days after the grant of leave in accordance with Order 53, rule 5 of the RHC.

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