SANGARI DEEPAK v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 28/2019

[2021] HKCFI 267

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 28 of 2019

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 the Applicant in open court;

1.      Extension of time for application for leave to apply for Judicial Review be refused; and

2.      Application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.  The applicant was refused entry to Hong Kong from Macau on 10/12/2011 and 31/12/2011.  He tried again on 8/2/2012. He was also refused entry. He then filed a torture claim. He was granted recognizance on 29/4/2012. [1]

2.  His torture claim was refused by the Director on 5/7/2012. He filed a non-refoulement claim on 3/3/2014. The latter claim was assessed on BOR 3 and persecution risk grounds.

3.  The applicant claimed that he might be killed by the family of his girlfriend. They objected to their relationship. He was also in fear that the college boys might take revenge on him for the murder of their head boy.[2]

4.  The non-refoulement claim was dismissed by the Director on 27/6/2016. His appeal to the TCAB was dismissed on 19/9/2016 as he was late in filing the notice of appeal for about one week.

5.  In the interim, the Director invited the applicant to file further evidence in relation to BOR 2 claim on 6/2/2017. The applicant did not respond. The Director dismissed the BOR 2 claim on 27/2/2017 based on the available information.[3]

6.  The applicant filed the leave application for judicial review on 4/1/2019. He only sought leave to review the decision of the TCAB dated 19/9/2016. He was more than 2 years out of time. In his Form 86 and affirmation, he did not seek extension of time for the leave application. There was no explanation about the late application.

7.  The applicant had not appealed to the TCAB against the decision of the Director dated 27/2/2017 on the BOR 2 claim.

8.  This court fixed a hearing on 8/12/2020 on the applicant’s request. He told this court the following:

a.  In 2019, he received a letter informing him that his case had ended. He did not recall the sender. It might be from the Immigration Department or the High Court. He had not read the letter properly. A friend told him to challenge the decision at the High Court.

b.  He had changed his address once around September 2018. He did not inform the Immigration Department or TCAB about the change.

Background [4]

9.  The applicant was born on 22/7/1981.  He was from Qilla Mohallah, Punjab, India. He had received education for 10 years. He was a Hindu. From 1998—2011, he worked in his family clothing business. From 2004—2006, he worked in Malaysia at a construction site. His parents and brother were in India. He was never in trouble with the police in India. 

The love relationship [5]

10.  In 2006, he met Kamal (“girlfriend”) at a market. They eventually fell in love.

11.  Later, he learnt that Kamal was a Sikh. Both of them understood a Hindu should not marry a Sikh according to Indian culture. They therefore kept the relationship in secret.

12.  Around New Year Eve of 2008, he and Kamal went to Jalandhar to celebrate. They met Kamal’s brother (“S”) outside a hotel. S confronted Kamal about the relationship.

13.  A few days later, S met the applicant on the road. S questioned him for the relationship with Kamal. He made up an excuse that they were only attending the same English course.

14.  About four days later, S confronted him at his clothing shop. S was angry as he found out the excuse was a lie. They had a heated argument.

15.  In February 2008, he was assaulted by two unknown men on the road from behind. Later, S appeared with a sword and cut his wrist where he had tattooed Kamal’s name. S and those men fled. He was taken to a hospital and received some stitches.

16.  After recovery, he discussed with S about the relationship with Kamal. S just indicated that his family would inform the applicant’s parents about it.

17.  The applicant’s parents were open-minded. They proposed to Kamal’s parents for him to marry Kamal. Kamal’s parents firmly rejected it on religious ground. S told the applicant’s father that if the applicant continued with the relationship, S would kill the applicant.

18.  The applicant was so upset that he started taking drugs. He committed suicide by taking sleeping pills in June 2008. He was rescued and hospitalized for 6 days. He was sent to a rehabilitation center for 6 months to treat his drug addiction.

19.  Six months later, S learned that the applicant had returned to the home village. S told the applicant’s father that he would kill the applicant if they met.  

20.  In order to tackle the drug problem and avoid S, his father sent him to Mumbai to live with his uncle. He stayed at Mumbai for 2 years. S did not trouble him. Due to change of resident policy, he had to return to the home village eventually. All along, he kept in contact with Kamal using a personal phone. S was not aware of this.

The murder of the head boy [6]

21.  The applicant had a friend Prince (“P”) who was the nephew of a member of the parliament.

22.  In the beginning of 2011, P had some grudges with the head boy of Khalsa College at Jalandhar. The applicant did not know the name of the head boy.

23.  About July 2011, there was a gang fight between the gang of P and that of the head boy. P shot dead the head boy. He was one of the suspects arrested. The police released him after they learnt that he was not at the fight. P and his gang were prosecuted and imprisoned.

24.  The college boys insisted that the applicant was connected with the murder. They attacked the applicant one day while he visited his uncle in Jalandhar. He sustained injuries at his back and left foot. He had 18 stitches and hospitalized for 2 days. His parents did not allow him to report to the police for fear of further trouble.

25.  Since then, the college boys kept on lurking outside his shop. His father reported to the police who apparently settled the matter. However, the college boys resumed the lurking a week later. His parents sent him to his uncle’s place for his safety.

26.  In October 2011, his uncle accompanied him to Delhi airport. He left India by air without any problem. He made all the travel arrangements himself.

27.  He did not think the police would protect him as they were corrupt. It would not be possible for him to relocate as S and his family had good network and were able to locate him.

28.  He learnt from his parents that Kamal still insisted to marry him only. The gang of the head boy still lurking outside his shop occasionally.

The Decision of the Director [7]

29.  The applicant defaulted 3 screening interviews since September 2015 on medical grounds.[8] On 29/4/2016, the DLS informed the Director that they had no further instruction from the applicant. The DLS had difficulties contacting him since 20/4/2016.

30.  The applicant did not respond to the Director’s invitation to contact the case officer in May 2016. He did not file any written clarification of his claim as requested. The Director proceeded to consider the non-refoulement claim based on the NCF (30/3/2012), record of interview (25/6/2012) and SCF (4/8/2015).[9]

31.  The Director pointed out the following to conclude that the level of risk of harm from S and the college boys was low:

(a)  The applicant claimed to have been attacked by S and his men. He was also attacked by the college boys. The injuries sustained was not serious. It was not accepted that his injuries amounted to “a minimum level of severity”. 

(b)  For the attacks either from S or the college boys, there was no intention to kill or cause serious injuries. It would not be difficult had they wanted to do so.

(c)  There was no evidence that any of the attackers was linked to the government. There was no evidence of State involvement. There was no evidence that the conduct of the attackers was instigated, encouraged or acquiesced by the State.

(d)  The applicant did not report the attacks to the police. There was no evidence that they would not investigate. In fact, they released the applicant in the murder case after he established a valid alibi.

(e)  There were COI reporting that inter-religious marriages were less likely in rural areas than urban areas. General societal attitude was against inter- religious marriage although it was not uncommon. However, inter-religious and inter-caste marriages were legal. Some state governments even provide protection to inter-faith and runaway couples.

(f)  There were COI reporting widespread corruption and police abuse of power. On the other hand, there were COI which showed objective improvement in recent years. There were local police complaints commission established in all states which aimed to investigate and punish police misconduct. There were other channels for complaint to the officer in charge of a police station or a magistrate. Some police officers were prosecuted for misconduct from time to time as reported in the news. The Director was satisfied that there was reasonable State protection.

(g)  The Director found that there was reasonable opportunity for internal relocation. The law permitted internal movement.  India was a large country with a large population. New Delhi was a possible option.  It would be difficult for Kamal’s family and the college boys to locate him. It would not be unduly harsh for him to relocate given his age. In fact, the applicant was safe when he stayed in Mumbai for two years.

32.  For the claim under BOR 3, the Director found no evidence of ill-treatment amounted to ‘a minimum level of severity’.  The evidence did not support a genuine and substantial risk of ill-treatment and danger to his life if returned to India. 

33.  For persecution risk, the dispute between the applicant and Kamal’s family was private and personal. The dispute of the applicant and the college boys was also private in nature. The applicant was not within any category of persons vulnerable to persecution according to the Refugee Convention. His fear was not well founded. This claim failed.

34.  The Director invited the applicant to file further evidence in relation to BOR 2 on 6/2/2017. There was no response. The Director considered the available evidence and concluded that the applicant would not be in real risk of arbitrary deprivation of life. The Director rejected the claim under BOR 2 on 27/2/2017.

35.  The Director dismissed all claims on 27/6/2016 and 27/2/2017 respectively.

The Decision of TCAB[10]

36.  The applicant filed a notice of appeal to the TCAB on 19/7/2016 which was about 7 days out of time.

37.  The applicant explained in the notice of appeal that he received the Director’s decision on 30/6/2016. However, he had injured his hand in an attack. He had to attend hospital and police station many times during this period.

38.  The adjudicator pointed out that the regime for late filing of notice of appeal was a strict one. A claimant must give reasons for non-compliance and file documentary evidence in support. Late filing would only be allowed if there were special circumstances and it would be unjust not to do so.

39.  The adjudicator opined that there was no documentary evidence to support the applicant’s explanation. The fact that he was pre-occupied with other matters should not preclude him from filing the notice before the deadline. The adjudicator rejected the explanation and refuse the late filing.

Judicial Review

40.  The applicant filed the leave application for judicial review on 4/1/2019. He was more than 2 years out of time as the decision of the TCAB was given on 19/9/2016. He did not apply for extension of time for the leave application. 

41.  In the Form 86, the applicant raised the following grounds:

 i.  Misdirection in the law—that the applicant had to experience torture in the past in order to establish future risk of torture.

 ii.  Procedural Impropriety—the adjudicator failed to research and inquire into the COI.

 iii.  Irrationality—the adjudicator failed to put any weight on the relevant COI.

 iv.  Irrationality—the adjudicator failed to evaluate whether there exists a pattern of gross, flagrant or mass violations of human rights in India.

 v.  Irrationality—the adjudicator failed to assess State protection in India.

 vi.  Irrationality—the adjudicator took into account irrelevant considerations.

 vii.  Procedural Impropriety—the adjudicator failed to call psychological and psychiatric reports.

 viii.  Procedural impropriety—the adjudicator applied incorrect standard of proof.

 ix.  Procedural impropriety—failure of the DLS leading to insufficient legal representation for the applicant and unfairness in procedure.

TCAB Appeal

42.  The applicant was late for one week in filing the notice of appeal to the TCAB. He confirmed to the TCAB that he received the decision of the Director on 30/6/2016. It appeared that there was no mention of any grounds of appeal against the decision of the Director.

43.  The adjudicator pointed out that the applicant should have explained in more detail how his injuries prevented him from lodging the notice before the deadline. There was no documentary evidence to support the injuries or visits to the hospital and police station as required under s.37ZT (1) of the Immigration Ordinance. The adjudicator reiterated that the applicant must comply with the time limit. The adjudicator concluded that there was no relevant matter of fact within his knowledge amounting to special circumstances. The adjudicator did not consider the merits of the appeal.

44.  In Re Qasim Ali, the Court of Appeal held that in assessing whether to allow late filing, the Board should consider the merits of the appeal regardless of the procedural breaches or the lack of explanation.This was the requirement under s. 37ZT (2)(b) of the Immigration Ordinance.[11]

45.  Re Qasim Ali was decided in April 2019, before that I understand it was the interpretation of the TCAB that in considering whether to allow late filing, there was no need to consider merits of the appeal.  

46.  The decision of the TCAB on 27/6/2016 was in error. It failed to consider the merits of the applicant’s claim in disallowing late filing.

Out of Time Leave Application

47.  As mentioned above, the leave application was out of time for about 2 years.  He should have first sought an extension of time.

48.  During the hearing before this court, the applicant explained that he received a letter in 2019. The sender notified him that his case had ended. He was not sure about the sender. It might be from the Immigration Department or the High Court. He did not read it properly. Later, a friend told him to challenge the decision in the High Court. The applicant confirmed that he had changed his address once around September 2018. He did not report the change to the Immigration Department or the TCAB.

49.  The decisions of the Director (27/6/2016) and the TCAB (19/9/2016) were sent to the same address at Cheung Sha Wan Road. In his notice of appeal, the applicant confirmed that he received the decision of the Director on 30/6/2016. Under normal circumstances, the decision of the TCAB should have reached the applicant at the same address. Even if he had not received the decision of the TCAB earlier, there was no reason for him to wait until 2019. He should have made enquiries about his appeal long before that. In his affirmation, he did not mention the 2019 letter.

50.  In my view, the 2019 letter should not be sent from the Immigration Department as he had not informed the Director about the change of address [12]. It should not be sent from the High Court as the earliest correspondence with the applicant, according to the court file, was in March 2019. Having considered all the evidence, I do not find his explanation credible. [13] I am satisfied that there was undue delay.

51.  In considering whether there is good reason for the extension of time, I should consider the length of the delay, the reason for the delay and the merits of the leave application. [14] In view of the ruling in Re Qasim Ali, the applicant stands a good chance in the judicial review of the decision of the TCAB. This factor alone favours extension of time. However, this was only one of the factors. There are wider issues which this court should consider.

52.  According to the decision of the Director, the applicant had sought to defer 3 scheduled screening interviews from September 2015 to April 2016 albeit with medical certificates. He lost contact with the DLS in April 2016 leading to the withdrawal of representation. He did not contact the case officer despite the request from the Director in May 2016. He did not respond to the filing of further evidence on BOR 2 in February 2017. Throughout that period, he should be residing at the address at Cheung Sha Wan Road. All correspondences should have reached him under normal circumstances.

53.  Before this court, he gave unconvincing explanation about the failure to receive the TCAB decision which was rejected.

54.  In his Form 86, he raised grounds of review which are totally irrelevant to the late filing issue. Given that the adjudicator had not considered the merits, the grounds appear empty and routine. In fact, apart from some personal particulars, the content of his Form 86 is substantially the same as the one in HCAL 1556/2018. The latter related to another Indian claimant. All these vividly demonstrate his unconcerned and irresponsible attitude.

55.  In my view, the applicant is trying to mislead the court. This background indicates that the applicant is playing the system.

56.  I take judicial notice that at present there are many non-refoulement claims in the judicial system pending disposal. There are many non-refoulement claims pending assessment by the Director. The procedures in the initial assessments by the Director and TCAB must be strictly complied with for expedient disposal of these cases. It is also important to deter delay tactics. To suffer conduct like the applicant would be detrimental to good administration. Further, to grant leave in this case of substantial delay would re-open applications from similar cases decided by the TCAB before Re Qasim Ali case.

57.  I am aware that correction of error of law in the lower tribunals is an important function of judicial review. It is one of the factors to be considered in this context.

58.  I have also considered the merits of the applicant’s non-refoulement claim based on the decision of the Director. I agree there is no merit. The decision of the Director is reasonable. There would not be any significant prejudice to the applicant if leave is refused.

Conclusion

59.  In the circumstances, there is no good reason for extending the time for the leave application.  I refuse leave to apply for judicial review. Had there been good reason, I would also refuse leave as it would be detrimental to good administration.

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