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

HCAL 715/2019

[2022] HKCFI 2882

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 715 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 Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 25 January 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Second Decision”).

2.  The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will 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.

The applicant

4.  The applicant is a national of India. He entered Hong Kong illegally on 15 October 2013 and was arrested by the police on 5 December 2013 for illegally remaining. On 7 December 2013, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by his uncle Gurdeep Singh (“Gurdeep”) because of a land dispute.

5.  According to the applicant, his grandfather divided the family lands equally between his father and Gurdeep. However, Gurdeep was in charge of the land documents. After his grandfather passed away, the applicant urged Gurdeep to hand him the land documents so that he could take over the land. However, Gurdeep refused and their arguments had lasted for around six months. In August 2012, the applicant had a verbal fight with Gurdeep. Later in September 2012, he was assaulted by some unknown men. Not only did Gurdeep pose verbal threats, he also sent some men carrying weapons to frighten the applicant in early 2013 after the village council demanded him to return the applicant’s land. Out of fear, the applicant eventually fled to Hong Kong for protection. Details of the applicant’s claim are set out at paragraph 6 of the Notice of Decision dated 25 January 2016 by the Director (the “Director’s First Decision”) and paragraph 15 of the decision of the Board dated 20 January 2017 (the “Board’s First Decision”).

The Director’s Decisions

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 First Decision, the Director dismissed the applicant’s claim on Torture risk, BOR 3 risk and Persecution risk. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [12]; (ii) Gurdeep had shown no intention to seriously harm or kill him [13]; (iii) it was a private land dispute without state involvement [14]; (iv) state protection would be available to him [15]-[21]; and (v) internal relocation was a viable alternative [22]-[27].

8.  In the Notice of Further Decision dated 13 April 2017, the Director also found that his right to life would not be violated if refouled and dismissed his claim on BOR 2 risk (the “Director’s Second Decision”).

The Board’s Decision

9.  On 4 February 2016, the applicant appealed the Director’s First Decision to the Board. An oral hearing was held on 29 September 2016 for his appeal, during which the applicant elected not to give evidence [16].

10.  The Board found that the applicant’s claim could not be said to be implausible or incredible. Thus, it gave the applicant the benefit of the doubt and accepted his account of the land dispute and events arising therefrom [17]. In assessing the individual grounds, the Board noted that (i) Gurdeep had ample opportunities to hurt or even kill the applicant but the applicant only suffered one assault with no severe pain or sufferings; (ii) it was a mere speculation that Gurdeep was influential; (iii) there was no evidence of state involvement; (iv) there was no evidence of state inaction; and (v) the country of origin information showed that state protection would be available [18]. In any event, internal relocation was a viable option for the applicant [19]-[20]. As a result, the Board concluded that the applicant’s claim on Torture risk, BOR 3 risk and Persecution risk failed and dismissed his appeal against the Director’s First Decision. This is the Board’s First Decision.

11.  On 15 May 2017, the applicant sought to file an appeal against the Director’s Second Decision. He was late by more than two weeks. The Board noted that the Director’s Second Decision was sent to the applicant’s address which was the same as the one he listed in his notice of appeal/petition to the Board. It therefore rejected the applicant’s explanation that he received the Director’s Second Decision late [8]-[12]. On this premise, the Board found that there were no special circumstances which warranted an exercise of discretion to allow the late filing.

12.  Thus, by way of the Board’s Second Decision, the Board refused the applicant’s late filing of notice of appeal/petition against the Director’s Second Decision.

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

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

14.  In his affirmation in support of his application, the applicant said his life would be in danger if he returned to his country.

DISCUSSION

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 Second Decision should be examined with rigorous examination and anxious scrutiny.

17.  The issue before me for this application is whether the Board’s Second Decision was made in accordance with the public law requirements and fair to the applicant.

18.  The Board was not satisfied with the applicant’s explanation for the late filing of the notice of appeal without further considering the merits of the applicant’s case. In this case, the same Board, which had considered the applicant’s claim on Torture risk, the BOR 3 risk and the Persecution risk and it had dismissed it on the merits of the case. There is not application to pursue the Board’s First Decision, which has become final.

19.  Although the Board had not re-considered the applicant’s claim on BOR 2 risk by reference to the its First Decision, where there had been a determination that there was no merit for the BOR 3 risk, BOR 2 risk ground will not sustain. The Court of Appeal in Kulwinder Kaur v Director of Immigration and Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2022] HKCA 48, 7 January 2022 held:

“59. … upon determining that there is no BOR 3 risk, there is no arguable ground for any BOR 2 risk: see AA v Sweden (2017) 64 EHRR 20 at [52] and [96]; RM v Gerard Paul Muttrie Esq (unrep., HCAL 166/2015, 3 March 2016) at [52].”

20.  The applicant has not raised any additional materials to show that they are relevant to the BOR 2 risk in his affirmation for this application.

21.  The Court does not find any error of law or procedural unfairness in the Board’s Second Decision.

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

CONCLUSION

23.  I refuse to grant leave for the applicant 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