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

HCAL 721/2019

[2022] HKCFI 3562

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 721 of 2019

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 oral submissions by the Applicant in open court.

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

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

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 13 July 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). His application filed on 14 March 2019 is late.[1] I shall deal with this issue below.

2.  The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), he appeared before the Court on 21 September 2022.

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 entered Hong Kong as a visitor on 14 December 2013 and was permitted to stay until 28 December 2013. He did not depart and had overstayed since 29 December 2013. On 31 December 2013, he was arrested by the police for overstaying. On 2 January 2014, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by Kalu.

5.  In brevity, the applicant’s fear of harm from Kalu originated from a land dispute. In August 2013, Kalu demanded the applicant’s family for their farmland. Met with their refusal, Kalu initiated a heated argument with them. During the argument, Kalu found that the applicant was disrespectful and had since then been threatening the applicant. On one occasion, Kalu intercepted and threatened the applicant. Feared that the threats would be materialized, the applicant fled to his maternal home. Nevertheless, he was told that Kalu kept asking for his whereabouts. While Kalu did not harm his family, the applicant eventually escaped to Hong Kong for protection. Details of his claim are set out at paragraph 7 of the Notice of Decision dated 23 December 2016 by the Director (the “Director’s Decision”).

The Director’s Decision

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

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  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

d.  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 Decision, the Director dismissed the applicant’s claim for the level of risk of harm upon his refoulement was assessed to be low. In elaboration, the Director found that (i) the absence or low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [13]; (ii) Kalu’s threats, if any, were localized [14]; (iii) state protection would be available to him [15]-[17]; and (iv) internal relocation was a viable alternative [18].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 26 January 2018, the Board conducted an oral hearing for his appeal.

9.  Before the Board, the applicant confirmed that the owner of the alleged land was his grandfather. The reason that Kalu targeted him was that he spoke ill of Kalu [26]. Yet, the Board considered such assertion to be implausible. In particular, the Board noted that Kalu’s intention was to seize the farmland but he did not harm the registered owner of the land, i.e., the applicant’s grandfather. It also noted that Kalu did not inflict any violence on the applicant even during the heated argument. Meanwhile, in the subsequent encounters, the applicant was not harmed by Kalu [26].

10.  In assessing the applicant’s credibility, the Board noticed that the applicant had not provided any evidence on his family’s ownership of the land and Kalu’s background [34]. His evidence on the details of the encounters with Kalu, and the accounts for internal relocation were inconsistent [35]-[39]. Even taking his evidence as its truth, the Board found that there was no injury attaining the minimum level of severity [43]. After considering the country of origin information, the Board found that state protection would be available to him [44]-[54]. In addition, there was no state involvement [56]. In any event, the fact that Kalu had to visit his house to ask for his whereabouts indicated that Kalu’s influence was localized [69].

11.  For the aforesaid findings, the Board rejected the applicant’s claim and dismissed his appeal.

Application for leave to apply for judicial review of the Board’s Decision

12.  The applicant has filed Form 86 dated 14 March 2019 for leave to apply for judicial review of the Board’s Decision.

13.  In his affirmation in support of his application and the grounds attached to Form 86, the applicant has raised the grounds below. He referred to the Director. However, I shall take it that he referred to the Board’s Decision.

(1)  The Board’s Decision is wrong and unfair as it did not consider the issue of his right to life.

(2)  He was tortured at the behest of the state law enforcement agencies as well as those in the high up political circles. The Board’s Decision did not take into consideration state acquiescence.

(3)  The Board had not given due weight to the Country of Origin Information in favour of his case.

(4)  The Board did not take into account the corruption and incompetency of the administration in Pakistan [India], which is very serious.

(5)  The Board has not attained the high standard of fairness and is therefore unreasonable.

DISCUSSION

14.  As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. The deadline of his application is on 13 October 2018. The delay is about 5 months. He has given no explanation for his delay and his application can be dismissed on this basis alone. However, I shall first consider the merits of the applicant’s case.

15.  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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

16.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that he understood the Director’ Decision and the Board’s Decision. He complained that the Board did not accept his evidence.

17.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …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.”

18.  As to the grounds in paragraph 13 above, there is no evidence that he was tortured by the enforcement agencies or the political circles. The other grounds are only assertions or opinions without any evidence in support.

19.  The Board had assessed his evidence and, for the reasons above, found the facts of his case. There is no valid reason to challenge the Board’s Decision.

20.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

21.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

22.  I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

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