WALIA MANMEET v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1036/2019

[2023] HKCFI 787

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1036 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.  Leave to amend the Form 86 by naming the Director of Immigration as the interested party granted;

2.  Extension of time to file the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 5 March 2018 refused; and

3.  The application for leave to apply for Judicial Review dismissed.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 16 April 2019 for leave to apply for judicial review (the “leave application”) of both the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”) dated 5 March 2018 (the “Decision”) and the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 21 June 2017 (the “Notice”). Both the Board and the Director are named as the intended respondent. The Applicant requested a hearing. A hearing was scheduled for him on 1 March 2023.

2.  The Applicant is an Indian national, now aged 34. He arrived in Hong Kong as a visitor on 13 July 2016. He overstayed since 28 July 2016 and surrendered to the Immigration Department on 5 September 2016. On 4 November 2016, he raised a non-refoulement claim by way of written signification.

3.  In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. His claim was dismissed by the Director’s Notice. His appeal against the Notice was dismissed by the Decision of the Board. He now seeks leave to apply for judicial review of that Decision.

4.  In the non-refoulement context, the decision of the Board is reviewable by judicial process but not the Director’s Notice because there are established statutory procedures for appeal to the Board under section 37ZR of the Immigration Ordinance, Cap. 115 and the Applicant has invoked those procedures. At the time of the filing of the Form 86, the Director’s Notice had been superseded by the Board’s Decision. It is no longer susceptible to judicial review: Re Moshsin Ali[5]. Accordingly, leave is granted to amend the Form 86 making the Director an intended interested party and the Decision the sole decision in respect of which relief is sought.

5.  The leave application was made more than 13 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 Order of the Rules of the High Court, it is more than 10 months out of time. Leave to file the leave application out of time is required. In AW and Director of Immigration and William Lam[6], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time:

(1)  length of the delay;

(2)  explanation for the delay;

(3)  merits of the substantive application;

(4)  prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and

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

6.  Merits is usually a very important factor. Where the delay is not very substantial, merits is usually the determinant factor. But it was also held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung[7] that where an applicant is many months out of time, leave may be refused “however strong the complaint might otherwise be”. The delay in this case is so substantial that leave may be refused on this ground alone. Nevertheless, for completeness, the Court proceeded to assess the prospect of success in the proposed judicial review.

Explanation for the delay

7.  The explanation the Applicant gave at the hearing for the late application is that he only received the Decision by post eight months after he was put in prison custody. He said he was in prison since July 2018 for eleven months and then transferred to CAC (Presumably, he meant Castle Peak Bay Immigration Centre) where he was detained for two further months. He said he received the Decision by post in November or December 2018. That does not tally with his assertion that he received the Decision eight months after he was put in prison custody, which would be in March 2019. He said he received the Decision through the post. Repeated attempts were made to ascertain from him how he came to receive the Decision. He was evasive. He did not give a direct answer but gave an irrelevant response such as he showed the letter to his friend who told him that his appeal had been dismissed.

8.  Even making a very generous allowance for failure in memory about dates and months, his account is obviously inherently improbable. While in custody, he could not have received the Decision directly through the post. He would have received it through a prison officer and his receipt would be recorded in the Prisoners’ Incoming Mail Register or some kind of a register. More importantly, it is incredible that the Board would have sent him the Decision in the prison as the Board would not have known about his incarceration. In any event, it is incredible that the Board would only have sent him the Decision eight months after it was made. The Court is unable to accept his explanation for the inordinate delay.

The Applicant’s case

9.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by him with legal assistance. In gist, he claimed that, if returned to India, he will be killed by a loan shark named Sachin Bhalla (“Bhalla”) for being unable to repay his debt and that he will be arrested by the police for a false case for deception and fraud instigated by Bhalla.

10.  The Applicant is single and has no children. He has received about 12 years of formal education and had about 8 years working experience as a property dealer. Since 2007, he assisted in his father’s property business. That business failed. His father sold the shop to repay the business debt. Then he rented the shop from the new owner to operate his own business there.

11.  In March 2015, the Applicant took out a loan in the amount of 5 million Indian Rupees at a monthly interest of 2% from Bhalla to expand his property business. The loan had to be repaid in two years. Bhalla is a gangster and a loan shark affiliated with politicians of the ruling party in Punjab, Shiromani Akali Dal (the “SAD”), which was also allied with India’s ruling party, the Bharatiya Janata Party (the “BJP”). His business went well initially but suffered tremendous loss in December 2015. He became unable to repay the loan and interest since.

12.  In April 2016, Bhalla came to the Applicant’s shop with four unknown men demanding repayment of the loan. When the Applicant explained he was unable to repay as his business was suffering loss, Bhalla’s men beat him with bare hands and wooden sticks. They also vandalised his shop and took the money in the cash drawer. Bhalla threatened to kill the Applicant if the loan was not repaid within one week. As a result of the attack, he suffered multiple injuries and lost consciousness. The owner of a neighbouring shop took him to a private hospital where he was hospitalised for 3 days. He fully recovered in about one week.

13.  While the Applicant was in the hospital, his family came to visit him with two police officers from Tilaknagar Police Station. He reported the attack to the police. The officers were unwilling to pursue the case and told him that Bhalla had strong affiliation with influential politicians.

14.  Then the Applicant’s parents advised him to leave Delhi and seek refuge in his paternal aunt’s home in Jalandhar, Punjab. He went there and stayed until July 2016. During that time, he maintained contact with his family and was informed that Bhalla continued looking for him. Bhalla and his men approached the Applicant’s family, relatives, friends and neighbours for his whereabouts. On one occasion in early June 2016, Bhalla and four of his men went to the Applicant’s home. They damaged household items and seized his motorcycle. They also slapped his mother in an attempt to force her to disclose the Applicant’s whereabouts, but her mother did not tell.

15.  The second attack occurred in early July 2016. Bhalla and his men located the Applicant in a fruit market. They chased him and fired shots after him. Eventually, they caught him and assaulted him with bare hands and wooden sticks for about 15 to 20 minutes. The Applicant somehow escaped with the help of his uncle’s friend. He suffered multiples injuries. It took him around 10 to 12 days to fully recover. He reported the incident to the Vikas Puri Police Station. But the police took no action.

16.  The Applicant then left Jalandhar for New Delhi to avoid the threats from Bhalla. Whilst there, he was informed that Bhalla had filed a case with the police against him for fraud and deception. He was told by his family that the police had come to his home to arrest him. On his parents’ advise, he fled to Hong Kong. He maintained contact with his parents and was informed that Bhalla and the police continued visiting his home looking for him.

The finding of the Board

17.  While the Board accepted the background information of the Applicant, it did not attach any credence to the alleged loan or the attacks by Bhalla as there were numerous inconsistencies in the Applicant’s evidence. Despite he claimed to have assisted his father’s business since 2007 and then operated his own business in the same place, he was unable to answer the Board’s question about the full address of the shop premises. He could not even remember the number of the building and the telephone number of his shop.

18.  The Board found numerous inconsistencies in his evidence about the attacks and threats. At the hearing, the Applicant alleged that he suffered a bone fracture during the first attack, but this injury was not disclosed in any of the documents before the Director. The Applicant told the Director that Bhalla fired at him during the second attack in the fruit market using a pistol; but he told the Board that it was a rifle. He also told the Director that some people tried to stop the attackers but before the Board, he said that no one stopped them. The Applicant told the Director that he made a report to the police and a witness statement was taken from him, but before the Board, he said he did neither. The Board considered these inconsistencies raised serious credibility problems.

19.  The Board did not give credence to his allegation that SAD has connection throughout India which is contrary to the Country of Origin Information (“COI”) that its influence is largely restricted to the State of Punjab. Having regard to the size of India, its population and the Applicant’s education level and experience, the Board rejected the Applicant’s evidence that internal relocation is not feasible.

20.  Mainly based on the totality of the evidence and the findings above, the Board rejected the Applicant’s allegation about the loan and that a warrant of arrest had been issued against him for fraud and deception

21.  Applying the law applicable to non-refoulement protection under the USM to the facts found, the Board found that the Applicant had failed to establish the factual basis in support of his claim for protection under any of the four applicable grounds under the USM. Hence, it upheld the decision of the Director in his Notice and dismissed the Applicant’s appeal.

The legal principles applicable to judicial review

22.  The function 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. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[8].

Grounds for judicial review

23.  At the hearing, after explaining the above principles to him, the Applicant confirmed that he had no complaints about error of law, procedural unfairness or irrationality in the Decision. This is inconsistent with the grounds of application advanced by him in his supporting affirmation which he said was prepared by his friend on the basis of what he told his friend. The high standard of fairness requires the Court to consider these grounds and examine the Decision rigorously for errors of law, procedural unfairness and irrationality in the Board’s Decision.

24.  The Applicant advanced the following five grounds of application in his supporting affirmation:

(1)  He believes that the Director and the Board reached their decisions wrongly, the decisions were not reasonable and unfair; and he believes the Board failed to give him sufficient time and chance to arrange the relevant evidence for his non-refoulement claim and appeal;

(2)  The Director failed to give proper weight to the presence of state acquiescence; the Applicant was tortured at the behest and the state law enforcement agencies as well as those in the high ups of political circles;

(3)  The Director failed to take such argument into account or failed to give enough weight to such argument before reaching the Decision; and

(4)  This is a clean case of unfair attitude shown by the Director; the corruption and incompetency of the administration in his country is still a very serious problem.

Ground (1) – The Decision is unfair and unreasonable

25.  The thrust of this ground of application is procedural unfairness in that the Applicant was not given sufficient time to arrange the relevant evidence. He did not give any particulars. His case was founded on the Bhalla’s threat and assault and the false charge of fraud and deception made against him. He had put forward his case in his NCF and the record of interview. He mentioned no other documents needed to be produced. He had all the time he needed between July 2016 when he fled to Hong Kong until November 2017 when he appeared before the Board to arrange his evidence. He gave no particulars about the evidence in respect of which he needed more time to collate. It lies ill in his mouth to complain about unfairness and insufficient time to arrange evidence. His complaint is a mere allegation unsupported by any evidence.

Ground (2) – The Board failed to give proper weight to evidence about state acquiescence

26.  The Applicant’s case is about threats from Bhalla and a false charge of fraud and deception instigated by Bhalla. He advanced no evidence of torture or torture at the behest of state official. There is no evidence of state involvement or state acquiescence relating to the threats, assaults or the false charge. There is no evidence that Bhalla was a state official or was able to wield the authority of the government and/or the state. This ground is a familiar template ground but has no relevance to the facts of this case.

Ground (3) – The Board failed to take such argument into account

27.  The Applicant gave no particulars of the “such argument” he relied on in this ground. At the hearing, he was unable to elaborate.

Ground (4) – The Board’s unfair attitude

28.  The Applicant gave no particulars or evidence of the unfair attitude complained of. It is just a mere allegation. At the hearing, he was unable to elaborate. He actually agreed there was no unfairness.

Discussion and conclusion

29.  In the absence of specific grounds of application or grounds with sufficient particulars, the Court 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. 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 four applicable grounds under the USM; the burden of proof and standard of proof; and observed a very high standard of fairness. The Board found the Applicant not credible on the crucial issues of his risk of harm upon his return to India. Basically, he failed to discharge his burden of proving his fears and risks. It was on that basis that the Board found he had failed to prove the factual basis to support his claim for non-refoulement protection under any of the four applicable grounds under the USM. This is a finding of fact solely 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 detect no errors of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. The Decision was utterly without fault. The Applicant’s claims are not reasonably arguable. There is no realistic prospect of success in the proposed judicial review.

30.  He has no reasonable explanation for the ten months’ inordinate delay in making this application. His intended application for judicial review has no realistic prospect of success. For these reasons, the application for extension of time to apply and for leave to apply for judicial review is 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