MUNIYAPPAN THANGAM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 368/2020

[2023] HKCFI 1201

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 368 of 2020

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 to apply for leave for Judicial Review be refused; and

2.   The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 dated 10 March 2020 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/the Non-Refoulement Claims Petition Office (the “Board”) dated 21 November 2019 (the “Decision”) refusing his late filing of Notice of Appeal (“NOA”) against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 31 July 2018 refusing his application for non-refoulement protection (the “Notice”). 

2.  The leave application was made more than 3 months after the date of the Decision sought to be reviewed.  Pursuant to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, it is seventeen days out of time.  The delay is not substantial.  This Court is prepared to overlook the delay if the Applicant could show his intended judicial review has good prospect of success.

3.  In the course of his submission, the Applicant said he needed legal assistance but had no money to instruct private lawyer. Therefore, he sought an adjournment for the purpose of allowing him to apply for legal aid.  His explanation for making the application at this late stage is that formerly when he made the leave application he had money, presumably to instruct private lawyer; but now he has no money.  He did not explain why all of a sudden he had no money when formerly he had.  By his earlier submissions on other matters, as will be discussed below, he had impressed the Court with his readiness to conjure excuses.  The Court is not satisfied that his application was made in good faith.  The adjournment will de-rail and delay these proceedings.  Hence, the Court refused his application for adjournment.

4.  The Applicant is an Indian national, now aged 37.  He arrived in Hong Kong as a visitor on 12 February 2009 but overstayed.  Two days after his arrest, he lodged a torture claim under the Convention Against Torture and Other Cruel or Degrading Treatment or Punishment on 2 March 2009 (“CAT Claim”).  His CAT Claim was rejected by the Director on 18 January 2013.  He did not further pursue his CAT Claim and the decision of the Director in the CAT Claim became final.

5.  Following the introduction of the Unified Screening Mechanism (“USM”), the Applicant lodged his non-refoulement claim on 12 April 2013.  His claim was assessed on all applicable grounds other than the Torture Risk ground which had been considered under his CAT Claim, namely: BOR 3 Risk^[1]; Persecution Risk^[2] and BOR 2 Risk^[3] (collectively, the “three grounds”).  His non-refoulement claim was rejected by the Director’s Notice.  He lodged his NOA against the Director’s Notice.  But the Board refused to accept his late filing albeit it was only one day out of time.  He now applies for leave to apply for judicial review of that Decision.

The Applicant’s case under the three grounds

6.  In gist, the Applicant claimed that he will be harmed or killed by the police in his hometown because they considered him to be a suspect in the murder of the son of a high ranking police officer.

7.  The Applicant claimed that his father is a member of the Dravida Munnetra Kazhagam political party (“DMK”), but he is not. In early 2008, he was present at a polling booth for a council election in his home village as an observer on behalf of his father.  He was standing within a short distance of Selva Kumar (“Selva”), who was a member of the All India Anna Dravida Munnetra Kazhagam” (“ADMK”) and the son of Senthur Padiyan (“Padiyan”), the highest ranking police officer of his locality.  Padiyan was also a member of the ADMK.  Then, an argument arose between two members of the DMK and Selva. Selva, was attacked and sustained serious injuries.  When other ADMK members arrived, they started to beat the Applicant with sticks and stones.  Out of fear, the Applicant fled to the nearby fields in his home village. 

8.  He hid there for one to two weeks before making plans to leave India.  Whilst he was in hiding, he spoke with his father who advised to remain hidden as Padiyan and the police were looking for him.  He did not report this matter to the police as he feared they would support Padiyan. 

9.  In May 2008, the Applicant fled to Penang in Malaysia. There, he was informed by his father that Selva had died and he was named in an article published in a local newspaper as one of the suspects who killed Selva. Later, his father asked him to return to India as an agreement had been reached with Padiyan for the Applicant to turn himself in to Padiyan for “negotiation”. In December 2008, the Applicant returned from Malaysia.  When he reached Chennai, his father warned him not to return as Padiyan had arranged hit men to kill him.  He stayed in Chennai until February 2009 when his father arranged for his flight to Hong Kong. 

10.  The Applicant further alleged that his father was subsequently murdered by underlings of Padiyan in June 2017.  He said that his father’s murder was reported to the Saayal Kudi Police Station by the Applicant’s friend and a neighbour.  He fears that he will be killed like his father, if he returns to India.

The finding of the Director

11.  The Director did not accept the Applicant’s claim due to the lack of supporting evidence.  He found that the Applicant’s fear of being killed by Padiyan was mere speculation and the risk of harm was not likely to materialise.  The Applicant never encountered any problems while he was in India.  He was able to travel in and out of India to Malaysia and Hong Kong which is clear indication that he had never been a target of the Indian authorities.  Even assuming he would be arrested upon his return to India, the Director was of the view that there was no information suggesting that he would be ill-treated by the police and denied a fair trial. 

12.  On the basis of authoritative and credible Country of Origin Information, the Director noted that though corruption is a serious problem in the Indian police force, the government had made significant progress in combating corruption.  It was the Applicant’s own volition not to seek police protection while he was in India and there was nothing to show that the police would be unwilling or unable to assist the Applicant. 

The finding of the Board

13.  The issue before the Board is about the late filing of the NOA.  Under section 37ZS of the Immigration Ordinance and Paragraph 8.1 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme, an appeal against the decision of the Director must be made within 14 days after the Notice was served on the applicant.  The Notice was issued on 31 July 2018, it is deemed to have been served on the Applicant on 2 August 2018.  The Applicant filed the NOA on 17 August 2017.  It was filed one day out of time. 

14.  Section 37ZT(1)(a) mandates a late applicant to state his reasons for the late filing in Section 5 of the NOA and provide supporting documentary evidence.  However, the Applicant only repeated his claim of fear for his safety and asserted that he “could not find the place (presumably referring to the secretariat of the Board)” and that “[his] friend brought [him] here” as his explanations for the delay.  He produced no evidence in support of his explanation.

15.  The Board was satisfied that there was no delay on the part of the Director in sending the Notice to the Applicant via the Duty Lawyer Service which received the same on his behalf.  It was satisfied that the Notice contained clear directions for filing of the NOA within fourteen days after it was served on the Applicant and the address of the secretariat of the Board for filing of the NOA.  The Board did not accept the Applicant’s explanation was a good reason for the delay.

16.  However, the Board went further to consider the merits of the Applicant’s intended appeal.  The Board noted that while claiming he fled to Malaysia to avoid the harm from Pandiyan, the Applicant never sought asylum or protection in Malaysia.  It also noted that the Applicant had in fact obtained a temporary employment visa on 1 May 2008.  The Applicant said he had copies of the newspaper, Thinakaran, reporting his suspected involvement in the murder of Selva and a copy of the First Information Report filed against him; but was unable to produce them as they had been lost due to his arrest by the police and subsequent imprisonment.  However, the Board noted that he was able to travel in and out of India to Malaysia and to Hong Kong using his Indian passport notwithstanding he was named as a suspect responsible for a murder and a First Information Report had been issued against him.  Upon reviewing all the documents available, the Board found the Applicant’s claim incredible and that there is no merit in his claim for non-refoulement protection.  Having evaluated these and all the other circumstances in accordance with the applicable legal provisions, especially section 37ZV(3) of the Immigration Ordinance and The Secretary of State for the Home Department v Beghum[4], the Board found there is no special circumstances for the Board to exercise any statutory discretion to extend the time limit for the Applicant to file his appeal.  Hence, it refused the late filing of his NOA.

Legal principles applicable to judicial review

17.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[5].

Grounds for judicial review

18.  The Applicant did not advance any grounds for judicial review in the Form 86 or supporting affirmation.  The Court took great pains to explain the above legal principle and the Board’s Decision to the Applicant.  Despite the Court’s effort in directing his mind towards explaining his delay and looking for a plausible ground of application for judicial review, the Applicant only repeatedly reiterated that he did not want to go back to his home country, that he had serious problems there and may even be killed if he returns.  He denied the explanation he gave in Section 5 of the NOA was given by him and put forward a new explanation for the delay. 

19.  He said he had contracted Corona virus and was told not to go out.  Hence, he did not report to the Immigration Department. Thus, he was arrested by the police and the Immigration Department cancelled his application.  This is inconsistent with the objective fact that he filed the Non-refoulement Claim Form and attended the screening interview.  This is not the explanation for the delay he gave in his NOA and it does not explain his late filing of the NOA.

20.  The Applicant denied the explanation in Section 5 of the NOA was given by him.  He said he was told to sign the NOA prepared by an immigration officer who told him to sign saying there was “no problem”.  He did not know the content of the NOA.  There was no interpreter and the content of the NOA was not explained to him.  This is inconsistent with the objective fact that the NOA was handwritten by him in Tamil and the Board acted on the basis of an English translation of the NOA written by him in Tamil.  What the Applicant asserted in this hearing is incapable of belief.  His story is also inherently incredible.  Why would the immigration officer out of his own volition encourage and assist the Applicant to appeal his own decision?  If this explanation is expunged as not having been given by him, the Applicant would be left with no explanation in Section 5 of the NOA for the late filing. This Court proceeds on the basis of the explanation given by the Applicant in the NOA and the facts as found by the Board in Paragraphs 13 to 16 of its Decision. 

21.  In the absence of specific grounds of application, the Court in an application for judicial review could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. The essence of the Applicant’s complaint is that he disagreed with the Director’s finding that it is safe for him to return to his home country.  In effect, he is seeking to challenge the Board’s finding of fact that he would not face any real harm or risk if returned to India.  That is not permissible unless the finding involved errors of law, procedural unfairness or irrationality.  Besides, that assertion does not explain the late filing.

Conclusion

22.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the late filing of the NOA.  It had properly directed its mind to the relevant provisions in the Immigration Ordinance, including section 37ZS, and to the three stage approach in Beghum.  It was on that basis that the Board found that he had failed to show any special circumstances for the Board to exercise any statutory discretion to extend the time limit for him to file the NOA.   These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  The Decision was utterly without fault.  The proposed

judicial review has no realistic prospect of success.  Accordingly, extension of time to file the application for leave to apply for judicial review and the leave application are refused.

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

[1] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[2] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[3] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[4] (2016) EWCA Civ 122 (3 March 2016)

[5] [2018] HKCA 524 at [14(1)]