SANDHU VINNY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 673/2019

[2022] HKCFI 2327

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 673 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 28 February 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office refusing to allow his late filing of the notice of appeal/petition against the Director’s Second Decision as described below (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 attempted to enter Hong Kong on 30 July 2015 but was refused the permission to land.  On the same date, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by Mr. Goyal, a business man who was connected with the Shiromani Akali Dal (“SAD”), because he refused to assist in Goyal’s illegal activities and exposed the said activities to the police.

5.  According to the applicant, in October 2014, he established a delivery company which delivered flour to different places.  In February 2015, he received an order from Goyal’s company to deliver 100 kilograms of flour. After picking up the flour, the applicant suspected them to be other kinds of powder.  In March 2015, the applicant received a second order from Goyal. During the transit to the destination, he was stopped by the police and the search revealed that there was a small bag of drug inside.  The applicant was arrested and he told the police officer that the powder belonged to Goyal. Thereafter, the applicant was released as Goyal bailed him out.  Goyal then asked him to continue the delivery of drugs.  Unwilling to work for Goyal, the applicant closed down his delivery business. 

6.  In April 2015, Goyal’s followers visited the applicant’s office, threatening him, destroying the properties therein and assaulting him for not cooperating with Goyal.  The applicant sustained back and shoulder injuries and also had bruises in his leg.  The applicant’s report to the police was of no avail. Instead, he was rearrested by the police for trafficking dangerous drugs, an offence which was framed by Goyal.  The applicant managed to escape secretly and relocated to another village.  Later in May 2015, the applicant was again attacked by Goyal despite the relocation and sustained head injury.  He reported to the police again.  Nevertheless, he was detained in the police station and assaulted on a daily basis.  After a bribe, the applicant was again released.  Out of fear, he eventually fled to Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 30 October 2015 by the Director (the “Director’s First Decision”) and paragraph 8 of the decision of the Board dated 26 January 2016 (the “Board’s First Decision”).   

The Director’s Decision

7.  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”).

8.  By way of the Director’s First Decision, the Director dismissed the applicant’s claim on BOR 3 risk, Torture risk and Persecution risk on the basis that the level of risk of harm upon his refoulement was assessed to be low.  In elaboration, the Director found that (i) there was no support of Goyal’s claimed influence and that, even the applicant claimed to visit Goyal’s factory frequently, he was unable to tell the full name of Goyal or the address of the factory [11]; (ii) there was no evidence that the Indian government had any adverse interest on the applicant [12]; (iii) Goyal and his people’s conducts showed no real intention to materialize the death threats against the applicant [13]; (iv) there was no information about the applicant’s alleged religious problem [14]; (v) state protection would be available to him [15]; and (vi) internal relocation was a viable alternative [16]-[19]. 

9.  For reasons set out in the Notice of Further Decision dated 22 February 2017, the Director also dismissed the applicant’s claim on BOR 2 risk (the “Director’s Second Decision”). 

The Board’s Decisions

10.  The applicant first appealed the Director’s First Decision to the Board.  On 7 January 2016, the Board conducted an oral hearing for his appeal. The applicant selectively answered some of the Board’s questions and announced that he did not wish to answer further questions from the Board [35].  

11.  After reminding itself with the relevant legal principles, the Board proceeded to assess the applicant’s credibility.  The Board noticed that an aspect of the applicant’s fear was from the disclosure of Goyal’s criminal activities to the police.  However, it found that this was illogical as, on the evidence, the police already knew about Goyal’s illegal activities [31]-[33]. It also considered that, if the applicant was indeed charged with a criminal offence, the government should have taken steps to prevent him from leaving the country [37].  Further, the Board refused to accept that Goyal would have such a persistent interest in the applicant [38].  On these premises, the Board found that Goyal would not put in so much efforts just to secure the applicant’s help and that it was implausible that the applicant was charged with the alleged drug offences [48]-[50].  Thus, the material aspects of the applicant’s claim were not credible. 

12.  In assessing the individual ground, the Board noted that Goyal was not a public official and there was no evidence to show insufficient state protection [62]-[63].  For these reasons, the Board rejected the applicant’s claim and dismissed his appeal.  

13.  On 4 July 2017, the applicant filed the notice of appeal/petition against the Director’s Second Decision.  He was late by 3 months and 24 days. As a result, the Board determined preliminarily whether to allow the late filing. 

14.  The Board considered the delay to be significant and serious [16].  It also rejected the applicant’s explanation for change of address [17]-[18] as it was held by the Court of Appeal that the litigant in person was obliged to inform the authorities about the change of address [19].  Since the applicant failed to update his change of address in a timely manner and to act promptly after he was informed about the refusal of his claim on BOR 2 risk, the Board was not satisfied with such explanation.  As a result, the Board refused to exercise its discretion to allow the late filing.

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

15.  The applicant has filed Form 86 dated 11 March 2019 for leave to apply for judicial review of the Board’s Second Decision.

16.  In his affirmation in support of his application, the applicant said the Board disregarded his dangerous situation.

DISCUSSION

17.  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).

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

19.  The issue for determination is whether the Board is correct in the Board’s Second Decision, which refused to extend time for the applicant to file his notice of appeal and further, even if the late filing of the notice of appeal were accepted, whether there is any realistic chance of success for the intended appeal.

20.  The Board had considered extensively the relevant authorities abroad and locally in relation to section 37ZT(2)(b) of the Ordinance, taking into consideration the length of delay, the explanations given by the applicant for the delay, case management of similar cases and found:

(1)  delay for 3 months and 24 days is both “serious” and “significant”;

(2)  the explanations given by the applicant are not acceptable, bearing in mind that he had failed to inform the Director his new address;

(3)  if the delay is only a short period of time, the Board should evaluate all the circumstances of the case, so as to enable it to deal fairly and justly with the application to extend time; and

(4)  in all the circumstances, the late filing of the applicant’s notice of appeal can justly be rejected.

21.  This Court will not interfere with the above findings.

22.  However, the findings above have to be further considered in light of the decision of the Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377 dated 2 April 2019, which has widened the scope of the Board’s consideration to cover the merits of the applicant’s case, suitably demonstrated in the Director’s First Decision, which should be put before the Board. The Court of Appeal held that the Board has to consider the merits even if the applicant is absent or late for the filing of the appeal:

“16. Section 37ZT(3) of the Ordinance gives the Board the discretion to allow the late filing of a notice of appeal if it is satisfied that by reason of special circumstances, it would be unjust not to do so.

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.”

23.  The Board’s Second Decision is dated 28 February 2019, which is about one odd month before the above Court of Appeal’s judgment on 2 April 2019. This decision is, however, binding on the lower courts. The Board had affirmed the Director’s First Decision, which contains the facts of the case. It will not be difficult for the Board to determine the merits of the case for the appeal against the Director’s Second Decision. The Board has not stated that it had considered the Director’s First Decision before it declined to allow extension of time for the applicant to file his notice of appeal against the Director’s Second Decision. The applicant’s late filing of the notice of appeal was declined on technical ground.

24.  Since the granting of leave for applying for judicial review is a discretion, which the Court has to consider judiciously and should not grant leave if there is no realistic chance of success in his challenge the Board’s Decision even if leave is granted. [1] The Court will take into consideration of the following factors:

(1)  the facts of the applicant’s case had been determined by the Board and the applicant did not dispute them, therefore they become final;

(2)  the applicant has not raised additional information for his appeal on the BOR 2 risk issue;

(3)  on the facts as found by the Board, there is no ground that the applicant will succeed on his BOR 2 risk even if he was allowed to file his notice of appeal and his case considered by the Board.

25.  The Court of Appeal in Kulwinder Kaur v Director of Immigration and Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2002] 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].”

26.  Under the above circumstances, it is simply futile to grant leave to the applicant to apply for judicial review of the Board’s Decision.

CONCLUSION

27.  I decline to grant leave to 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