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

HCAL 1311/2018

[2021] HKCFI 752

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1311 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;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review of the Decision dated 14 June 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s 2^nd Decision”), which is the Decision on BOR 2 risk and the applicant filed his Notice of Appeal out of time. In this 2^nd Decision, the Board rejected to extend time for him to file his Notice of Appeal. The Board also made its Decision on 2 March 2016 in respect of his claim on the Torture risk, BOR 3 risk and Persecution risk (“the Board’s 1^st Decision”). As the applicant’s BOR 2 risk has to rely upon the facts of the Board’s 1^st Decision and the applicant’s application will succeed if any one of the risks claimed sustains, the Court has to take into consideration of the Board’s 1^st Decision. The Court will on its own motion add this relief in Form 86.

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 shall 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 and the Board’s 1^st Decision be added as the relief to be sought.

The applicant

4.  The applicant is an Indian national. He came to Hong Kong on 9 September 2015. He was refused permission to land and he lodged his non-refoulement claim to the Immigration Department.

5.  He claimed that if refouled, he would be harmed by Joginder Singh Gill (“JSG”), a member of the Shiromani Akali Dal Party (“SAD”) because he had refused to leave the Indian National Congress Party to join the SAD. JSG had threatened to kill the applicant if he did not vote for him in the election of the Village Head. The applicant did not vote for him. JSG sent his people to attack him, telling him to leave India. He reported to police, who refused to make investigation into the matter. He had to seek refuge elsewhere. Upon his father’s advice, he left India for Hong Kong. Details of the incidents are set out in paragraph 6 of the Director’s Decision described below or paragraph 8 of the Board’s 1^st Decision.

The Director’s Decisions

6.  The Director considered his application in relation to the following risks:

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

b.  Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“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 Notice of Decision dated 20 November 2015 (“the Director’s Decision”), the Director refused his claim on Torture risk, BOR 3 risk and Persecution risk for the reason that his claim was not substantiated. The Director found that the level of risk of harm from JSG or his people upon his return to India was assessed to be low [10]; state protection was available to him [15] and internal relocation was an option open to him [20].

8.  By Notice of Further Decision dated 20 February 2017 (“the Director’s Further Decision”), the Director rejected his claim on BOR 2 risk as he failed to establish a personal and real risk of his rights under the Hong Kong Bill Rights being violated upon his return to India. [6]

The Board’s Decisions

9.  The applicant appealed to the Board against the Director’s Decision and attended the hearing before the Board on 11 February 2016.

10.  By the Board’s 1^st Decision, the Board rejected his appeal and confirmed the Director’s Decision for the reasons as set out below.

(1)  The applicant’s evidence was unreliable and inconsistent with the country of origin information in relation to the election of the Village Head. [47-53]

(2)  The applicant failed to show that he had a well-founded fear of persecution for any of the enumerated grounds or that there was a real chance that the claimed fear of persecution would materialize. [56]

(3)  There was no reliable evidence to show that there had been acquiescence or failure of due diligence on the part of the police. [64]

(4)  On the reasons above, the Board rejected his claim on Persecution risk [56], BOR 2 risk [61] and Torture risk [63]

11.  The applicant submitted his Notice of Appeal in respect of the Director’s Further Decision in relation to BOR 2 risk on 26 April 2017. The Board held that he was late for 1 month and 18 days. [5] The Board considered whether time should be extended to the applicant to file his Notice of Appeal pursuant to section 37ZT of the Ordinance. The Board had taken into consideration:

(1)  his reasons: “I don’t know submit date. I get my letter last night 25/4/2017, I received. I also don’t know English …”;

(2)  the serious consequences of non-compliance with the rules;

(3)  he had not informed the Immigration Department his change of his address;

(4)  his failure of supplying information to the Board upon request by the Board.

12.  The Board finally held that the late filing of his Notice of Appeal could justly be rejected and so it did.

Application for leave to apply for judicial review

13.  The applicant filed Form 86 on 6 July 2018 (amended) for leave to apply for judicial review of the Board’s 1^st and 2^nd Decisions respectively.

14.  In his affirmation in support of his application, he exhibited the Board’s 2^nd Decision. He did not set out any grounds in support of his application.

DISCUSSION

The Board’s 1^st Decision

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

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

“13.… …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.”

17.  Basically, the Board did not accept the facts in support of his claim. Therefore, he does not have any factual basis in support of his claim.

18.  His ground in support of this application does not assist his application.

19.  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.

The Board’s 2^nd Decision

20.  When the Board considered whether time should be extended for him to file his Notice of Appeal against the Director’s Further Decision, it did not have the benefit of the decision of the Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019:

“17.  Where a notice of appeal to is filed out of time, s 37ZT(2) mandates the Board to decide as a preliminary decision without a hearing whether it allows the late filing of the notice of appeal, and in doing so, to take account of “any other relevant matters of fact within the knowledge of the Board” apart from the explanation for the delay.

20.  … … it was incumbent upon the Board, in exercise of its discretion to extend time for appeal, to take the merits of the applicant’s case into account regardless of the procedural breaches or the lack of explanation therefor.”

21.  Although the Board had not stated that it had re-considered its 1^st Decision, it is obvious that it had confined its consideration to the factors under section ZT(2)(a) and (b) of the Ordinance, viz. the reasons for the delay and any other relevant matters of fact within the knowledge of the Board. The Board’s 1^st Decision is clearly before it when the Board considered the applicant’s application for extension of time. The Board had taken into consideration the seriousness or significance of the failure to comply with the rules. [19]

22.  Since the applicant has given no additional information in support of his appeal against the Director’s Further Decision, his evidence on the facts of his case had been rejected by the Board in its 1^st Decision. Under such circumstances, there is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.

CONCLUSION

23.  I therefore refuse to grant leave for the applicant to apply for his intended judicial review.  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