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

HCAL128/2018

[2018] HKCFI 2121

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 128 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 refused.  

Observations for the Applicant

Background

1.  The Applicant is a national of India.  He is now aged 30 (DOB: 1 June 1988). 

2.  The Applicant claimed he would be harmed or killed by his uncle Manjeet Singh (“Manjeet”) and Manjeet’s two sons (“Jasvir” and “Kuldeep”) because of a land dispute. The Applicant said Manjeet was a member of the Shiromani Akali Dal Party (“SAD”), which was affiliated to the ruling party Bharatiya Janata Party (“BJP”) in Punjab. Manjeet was connected with the high-rank people of Akali Dal such as Charan Singh, who was the chief of the locality where the Applicant lived.

3.  The Applicant’s grandfather died in late 2009. He left some land to the Applicant. Manjeet demanded the Applicant to transfer the land to him. He threatened to kill the Applicant if the latter should refuse. Being afraid of Manjeet, the Applicant verbally agreed but he actually had no intention to do so.

4.  In February 2010, Manjeet, Jasvir and Kuldeep attacked the Applicant. The Applicant was injured. He made a report to the police but the police told him that it was only a personal dispute. The police did nothing but asked for a bribe. Manjeet knew some influential and powerful people so he could influence the police. The Applicant said he later heard from a friend that Manjeet had bribed the police.

5.  After the Applicant had recovered from his injury, he resumed farming on the land. Shortly afterwards, he was again attacked by Manjeet, Jasvir and Kuldeep with some armed people. The Applicant did not report this incident to the police as he had been previously told by the police that they would not intervene in family matters.

6.  The Applicant sought assistance from Charan Singh, who was the head of the area. However, the Applicant was told to solve the matter by himself.

7.  Being in fear, the Applicant had moved to live in different places from April/May 2010 to avoid his enemies. Nevertheless, on one occasion in the village of Chonta, he met Jasvir and Kuldeep. They attacked him. The Applicant again made no report to the police.

8.  The Applicant moved to another place called Kapurthala. Jasvir and Kuldeep also found him and threatened him. This time, the Applicant tried to complain to the police but the police said it was not within their jurisdiction.

9.  The Applicant then moved to Jalandhar. He was attacked by a group of people one day. The Applicant was drunk but could still see Jasvir and Kuldeep among the assailants. He did not report the matter to the police.

10.  The Applicant feared Manjeet, Jasvir and Kuldeep would kill him. He decided to leave India for Hong Kong to seek protection. On 19 August 2010, he left India and arrived in Hong Kong as visitor. He did not seek asylum then. Instead, he told the immigration officer that he came for sightseeing. The Applicant was allowed to stay until 2 September 2010. He overstayed after that date. The Applicant was arrested by the police nearly thirty months later on 25 February 2013. On 29 April 2013, he raised a non-refoulement claim.

11.  The Applicant claimed his enemies were still looking for him. He did not think the police in India could protect him.

12.  The Applicant thought internal relocation was impossible as it would be difficult for him to establish himself elsewhere in India. He also said his enemies were able to find him in the country.

13.  In the ensuing two‑tier screening process here (“the Unified Screening Mechanism”), the Director of Immigration (“the Director”) and the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) respectively refused the Applicant’s claim with respect to all the four applicable grounds: (i) risk of torture,[1] (ii) risk of persecution,[2] (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (CIDTP risk or BOR3 risk)[3]  and (iv) risk of violation of the right to life (BOR2 risk)[4].

14.  On 26 January 2018, the Applicant applied for judicial review.

Timeline

15.  Things happened in this order: –

2010-8-19	The Applicant arrived in Hong Kong as visitor. He was allowed to stay until 2 September 2010. He overstayed after that date.
2013-2-25	The Applicant was arrested by the police.
2013-4-29	The Applicant filed a non-refoulement claim.
2015-11-16	The Director interviewed the Applicant.
2015-11-20	The Director refused the Applicant’s claim with respect to these three applicable grounds: torture risk, persecution risk and CIDTP risk (BOR3 risk).  [“the Director’s decision”]
2016-9-13	The Director invited the Applicant to submit additional facts for the consideration of the fourth applicable ground: life risk (BOR2 risk).
2016-9-27	The Applicant failed to submit additional facts by the deadline or thereafter.
2016-10-28	The Director refused the Applicant’s claim with respect to the fourth applicable ground: life risk (BOR2 risk). [“the Director’s further decision”]
2016-11-8	The Applicant appeared before the Board for appeal.
2017-1-23	The Board dismissed the Applicant’s appeal with respect to all the four applicable grounds. [“the Board’s decision”]
2018-1-26	The Applicant applied for leave for judicial review.

Respondent/Interested party

16.  The Unified Screening Mechanism is a two-tier process. The Director screens an applicant’s non-refoulement claim first; the applicant may appeal to the Board which deals with his/her complaint on a rehearing basis.

17.  In Re Moshsin Ali, the Court of Appeal states that “the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”[5]

18.  In Form 86, the Applicant named the Adjudicator as respondent and the Director as interested party.

19.  The Adjudicator acted for the Board. In court, the Applicant agreed to sue the Board in lieu of the Adjudicator. Thus, the Board is the putative respondent; the Director is the putative interested party. 

The Director's decision

20.  In the Director’s decision dated 20 November 2015, the Director did not accept the Applicant faced any real torture risk, persecution risk or BOR3 risk that warranted non-refoulement protection. He also found reasonable state protection and internal relocation were available to the Applicant in any event. The Director refused the Applicant’s claim with respect to those three applicable grounds.

21.  In the Director’s further decision dated 28 October 2016, the Director considered the Applicant failed to establish there was a personal and real risk of his rights under the Hong Kong Bill of Rights being violated (including the right to life under BOR2). He refused the Applicant’s claim with respect to the fourth applicable ground: life risk (BOR2 risk).

The Board's decision

22.  The Applicant appealed to the Board. The Adjudicator interviewed the Applicant on 8 November 2016.

23.  The Adjudicator found there were many inconsistent and unconvincing features in the Applicant's claim. He noted the Applicant only claimed protection after he had been arrested by the police. That was already more than two years after he had arrived in Hong Kong. The Adjudicator did not believe the Applicant’s explanation that he was unaware of how to apply for protection earlier. He found the Applicant was not a reliable witness. He did not accept his non-refoulement claim. He found the Applicant failed to establish any real risk that warranted non-refoulement protection.[6]

24.  The Adjudicator further found that even if the Applicant faced the harm as he claimed (which the Adjudicator did not actually accept), reasonable state protection and internal relocation available to the Applicant.[7]

25.  On 23 January 2017, the Adjudicator refused the Applicant’s claim with respect to all the four applicable grounds: torture risk, persecution risk, BOR3 risk and BOR 2 risk.[8]

Grounds of judicial review

26.  In his affirmation, the Applicant complained the Adjudicator unlawfully fettered his discretion; acted in a procedurally unfair manner; rendered unreasonable or irrational decisions; failed to meet the greater care and duty owed to a self-represented claimant.

27.  The Applicant accused the Adjudicator failed to make sufficient inquiry; failed to consider updated or relevant COI; took into account outdated cases and irrelevant information; considered information not officially recognised or simply hearsay; cherry-picked information; failed to evaluate and make a finding of fact as to whether there existed in India a consistent pattern of gross, flagrant or mass violations of human rights; failed to call for psychological or psychiatric reports; failed to properly consider the issues of state protection and state acquiescence; misdirected in law; applied the wrong standard of proof.

28.  The Applicant mentioned he was not represented for appeal to the Board. He also complained he was given the appeal bundle only a few days before the Board hearing. As such, he did not have sufficient time to prepare for the appeal due to language problem and lack of legal representation. The Applicant said he was confused of what happened. He complained the Adjudicator failed to make appropriate arrangement.

29.  Although the Applicant did not name the Director as respondent but only as interested party, he accused the Director decided on BOR2 risk without screening.

Court hearing  

30.  In Form 86, the Applicant requested a hearing.  The first hearing took place on 21 June 2018. The Applicant was in person. A Punjabi interpreter provided service in court.

31.  The Applicant filed the current application more than a year after the Board’s decision. He was asked to explain for the lateness. First, he said he did not know the 3-month limitation. He had been waiting for the Legal Aid result. Later, the Applicant said he had applied for judicial review previously in early 2017. The court had no such record but the Applicant was adamant. I thus adjourned the matter to 26 June for the Applicant to bring his papers to show there was indeed a previous application of leave for judicial review.

32.  The Applicant failed to appear on 26 June 2018. The court has not heard from him since the adjournment.

Discussion

33.  Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

34.  A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant.  Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[9] Nevertheless, it is said in Re Islam Rafiqul: –

“The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision-makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. 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.” [10]

Late application for leave for judicial review

35.  Order 53, rule 4 of the Rules of the High Court states: –

(1) An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.

(2) Where the relief sought is an order of certiorari in respect of any judgement, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgement, order, conviction or proceeding.

36.  In the present case, the Adjudicator gave his decision on 23 January 2017 but the Applicant only took out the current application more than a year later on 26 January 2018. There was no evidence to prove the Applicant's saying that he had taken out a similar application previously. The current application was late by nine months (after deducting the 3-month grace period for filing).

Legal principles of extending time

37.  In AW v Director of Immigration[11], the Court of Appeal states: –

23.There are two relevant statutory provisions: Order 53 rule 4(1) and section 21K (6) of the High Court Ordinance, Cap 4.

24. Order 53 rule 4(1) is in these terms:

“An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.”

25. Section 21K (6) provides as follows:

“Where the Court of First Instance considers that there has been undue delay in making an application for judicial review, the court may refuse to grant -

(a) leave for the making of the application; or

(b) any relief sought on the application,

if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.”

26. The relationship between these provisions was explained by Ackner LJ in R v Stratford-on-Avon District Council, ex p Jackson [1985] 1 WLR 1319 at 1325F to G and approved of by Lord Goff of Chieveley in R v Dairy Tribunal, ex p Caswell [1990] 2 AC 738 at 746G.  Whenever there is a failure to act promptly or within three months, there is “undue delay”.  Even though the court may be satisfied in the light of all the circumstances there is good reason for that failure, nevertheless the delay, viewed objectively, remains “undue delay”.  The court therefore retains a discretion to refuse to grant leave for the making of the application or the relief sought on the substantive application on the grounds of undue delay, if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.

27. In Re Thomas Lai [2014] 6 HKC 1, G Lam J considered the relevant authorities and stated the principles to be applied in an application to extend time for judicial review in §§43 to 45.  I take the following summary of these principles from the submission of Ms Sara Tong, who appeared for the Director:

(1) While in the public law field, it is essential that the courts should scrutinise with care any delay in making an application, the provisions of Order 53 rule 4(1) and section 21K (6) are not intended to be applied in a technical manner.  As long as no prejudice is caused, the courts will not rely on these provisions to deprive a litigant who has behaved sensibly and reasonably of relief to which he is otherwise entitled (R v Commissioner for Local Administration, ex p Croydon London Borough Council [1989] 1 All E R 1033 at 1046, per Woolf LJ).

(2) However, it must also be borne in mind that unless a disciplined approach to applications for judicial review out of time is taken, there is a real risk that public administration will be unduly disrupted and policies and decisions put into uncertainty for many months after they have been made and acted upon.

(3) What may constitute a good reason for extending time cannot be defined. In most cases, this would be a “multi-faceted question” the answer to which would depend on the circumstances of each case.  The following factors, which are not exhaustive, are likely to be of significance:

(i) Length of the delay: Obviously the longer the delay, the more cogent the reason has to be for extending time.

(ii) Explanation for the delay: While Order 53 rule 4(1) requires a good reason for extending time, rather than a good excuse for the delay, it is common sense that the presence of a credibly valid explanation for the delay will strengthen, and conversely the absence of any acceptable explanation will weaken, the applicant’s request for what is after all an indulgence to be granted to him in the court’s discretion.

(iii) Merits of the substantive application: Although merits of the challenge of the administrative decision are a significant matter to be taken into account, it is by no means the sole criterion.  Where an applicant is many months out of time, leave may be refused “however strong the complaint might otherwise be” (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at 693B to C, per Litton NPJ).  An applicant who sleeps upon his rights may be barred from pursuing them in judicial review even though he may have a meritorious case (Law Chun Loy v Secretary for Justice, HCAL 13/2005, 26 October 2006, at §13, per Hartmann J).

(iv) Prejudice: The question of prejudice has two sides: the prejudice to the applicant if time is not extended, and the prejudice to the respondent and to public administration if a challenge is allowed to proceed out of time.

(v) Questions of general public importance: Whether the application raises questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.

The list of factors is not exhaustive; the consideration is “multi-faceted”; the overriding principle is one of fairness.

38.  The Applicant said he did not know the 3-month limitation and he had been waiting for the Legal Aid result. These are not reasonable excuses for the 9-month delay. It was a substantial undue delay. The current application raised no point of general importance and also had no merits (see paras 39-52 below). Thus, the Applicant's late application of leave for judicial review should not be allowed.

Merits

39.  It is wrong for the Applicant to say the Director had not screened his application with respect to BOR2 risk. The Director rendered his further decision on 28 October 2016 based on the available information before him since the Applicant had not submitted additional facts for the Director's consideration. The Director was entitled to consider the Applicant’s claim with respect to BOR2 risk without holding further interview. The Director by his two decisions (dated 20 November 2015 and 28 October 2016 respectively) had carefully and fully dealt with the Applicant's claim with respect to all the four applicable grounds including BOR2 risk.

40.  The Applicant complained there was insufficient legal representation. He had been represented by the Duty Lawyer Service up to the Director's decision dated 20 November 2015.

41.  The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings.[12] The Applicant failed to show he had made any effort to re-apply for legal assistance from the Duty Lawyer Service after the Director's decision. He also failed to show how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

42.  The Applicant raised his language problem. In the current application, Form 86 and the Applicant's affirmation were prepared in English. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English documents. I am sure that was the case at all material times. The Applicant had much exaggerated his problem of getting interpretation/translation assistance and handling English documents.

43.  The Applicant complained he received the appeal bundle only a few days before the Board hearing.

44.  According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[13] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[14], the Director shall send copies of the hearing bundle to the Board and to the Applicant no later than 5 working days prior to the date of the hearing.

45.  The Director in his letter dated 27 June 2018 confirmed that the Applicant received the appeal bundle on 1 November 2016. That was 7 calendar days (or 6 working days) prior to the Board hearing. Thus, the bundle was served on the Applicant in time.

46.  The bundle would consist mostly of documents that had been seen or submitted by the Applicant during the first-tier screening of his claim. His case was not difficult. There was no evidence to show the bundle was difficult or voluminous.

47.  A few days certainly was not a long period but could still be sufficient for reasonable and diligent preparation on the part of the Applicant. The Applicant failed to show he really needed more time to prepare for his appeal. There was no evidence to show the Applicant had complained to the Adjudicator or applied for adjournment in the appeal hearing. There was no evidence to show he was confused. In fact, the Applicant in Point 5 on page 21 of his affirmation said he answered all the questions honestly in the Board hearing. That would only mean he was not confused then.

48.  The Applicant complained the Adjudicator failed to call for psychological or psychiatric reports. That was really not an issue since the Adjudicator had found the Applicant failed to establish any real risk that warranted non-refoulement protection.

49.  The Applicant said the Adjudicator failed to evaluate and make a finding of fact as to whether there existed in India a consistent pattern of gross, flagrant or mass violations of human rights. Yet, the Applicant failed to show how that was relevant to his own case.

50.  The Adjudicator had considered the issues of state protection and state acquiescence sufficiently. He noted that the Applicant allegedly had only attempted to report to the local police but did not seek to take the matter further for protection. The Adjudicator was not satisfied that reasonable state protection was unavailable to the Applicant.[15]

51.  There was no evidence that the Adjudicator had cherry-picked information or taken into account outdated cases/irrelevant information/information not officially recognised or simply hearsay.

52.  There are a number of other vague complaints raised by the Applicant. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I find the Adjudicator had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The Adjudicator’s report showed he was acquainted with the facts of the Applicant's case. He considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

53.  The Applicant's complaints are not reasonably arguable. He has no reasonable prospects of success in the sought judicial review. I therefore refuse to grant him leave for the 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

[1] As defined in Part VIIC of the Immigration Ordinance, Cap 115, which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[2] By reference to the non-refoulement principle under Articles 33 and 1A(2) of the 1951 Convention relating to the Status of Refugees.

[3] Under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4] Under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[5] CACV 54/2018, para 45.

[6] The Board's decision, paras 67-77.

[7] Ibid., paras 78-80.

[8] Ibid., paras 82-85

[9] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.

[10] CACV 219/2018 [2018] HKCA 570, para 14(1).

[11] CACV 63/2015

[12] CACV 284/2017 Re Paswan Shibu Lal, para 21.

[13] The ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’ was issued by the Chairperson of the Board pursuant to section 16 of Schedule 1A to the Immigration Ordinance, Cap. 115 of the Laws of Hong Kong.

[14] The ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’ was issued by the Chairperson of the Board, who had been in her personal capacity delegated by the Chief Executive with the authority under Article 48(13) of the Basic Law of the Hong Kong Special Administrative Region to determine the practice and procedure of the Administrative Non-refoulement Claims Petition Scheme.

[15] The Board’s decision, para 78(a).