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

HCAL 2181/2019

[2024] HKCFI 3342

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2181 OF 2019

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 30 March 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”). Time for the applicant to file Form 86 expired on 30 June 2017. The applicant filed his Form 86 on 31 July 2019. His application is late for more than 2 years. I shall deal with this issue below.

2.  The applicant asked for a hearing. However, he was absent at the hearing on 6 November 2024. I shall deal with his application on paper.

The applicant

3.  The applicant, aged 31, is an Indian. He last entered Hong Kong on 14 December 2013 and overstayed since 29 December 2013. The applicant was arrested by the police on 3 January 2014 and he made a non-refoulement claim on 5 January 2014. The claim was made on the basis that, if refouled, he would be harmed or killed by Daljit and Balwant.

4.  According to the applicant, he witnessed a murder in around October 2013, of which he suspected that his distant relative (“Neena”) was involved. In late October 2013, Neena’s father, Daljit, visited the applicant’s home and threatened him to disclose the details of the murder. A few days later, Balwant, who was the victim’s father also came and asked the applicant about the murder. In around November 2013, the police arrested the suspects including Neena. Shortly thereafter, Daljit and Balwant visited the applicant’s home again separately. The former threatened him to make a false testimony in favour of Neena, while the latter threatened him to tell the truth. One evening in November 2013, Daljit assaulted the applicant with knife outside his house, after which he immediately fled to his uncle’s home. For the sake of his safety, the applicant’s family arranged him to leave India on around 5 December 2013. Eventually, he entered Hong Kong on 14 December 2013.

5.  While in Hong Kong, the applicant learnt from his family that Neena was sentenced to imprisonment of 20 years. He was of the view that he could not seek protection from the police because he only came from an ordinary farming family. He also considered internal relocation not viable because Daljit was wealthy and had resources to locate him anywhere within India.

6.  Details of the applicant’s story were set out at paragraph 6 of the Notice of Decision dated 1 April 2016 by the Director (the “Director’s 1^st Decision”).

The Director’s Decisions

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

(a)  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”);

(b)  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);

(c)  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”) and

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

8.  By way of the Director’s 1^st Decision, the Director dismissed the applicant’s claim on BOR 3 risk, Persecution risk and Torture risk. The Director found that (i) the conduct of Daljit and Balwant indicated that they had no real intention to seriously harm or kill the applicant [12]; (ii) the applicant’s behavior was inconsistent with that of someone genuinely in fear [13]; (iii) there was no evidence showing that Daljit and Balwant were as influential as the applicant claimed [14]; (iv) state protection would be available [15]; and (v) internal relocation would be viable [16].

9.  In the Notice of Further Decision dated 10 February 2017, the Director also rejected the applicant’s claim on BOR 2 risk (“the Director’s 2^nd Decision”) for the reason that there was no evidence to show that his right to life under BOR 2 would be violated upon his return.

The Board’s Decision

10.  The applicant appealed the Director’s 1^st and 2^nd Decisions to the Board. On 14 March 2017, the Board conducted an oral hearing.

11.  The Board found that the applicant was not a witness of truth given the inconsistencies in his evidence regarding (i) his journey to Hong Kong; (ii) circumstances of the murder and what he did in its aftermath and (iii) his encounters with Daljit and Balwant as well as when Neena was arrested. It was also implausible that the applicant witnessed the murder while hiding in a field of tall wheat because October is the sowing season in India [50]-[60].

12.  Based on such findings, the Board found the applicant faced no real risk of harm upon his return to India [61]-[62] and rejected his claim on Persecution risk, Torture risk, BOR 2 and BOR 3 risk [13]-[20], [63]-[68]. The Board therefore dismissed the applicant’s appeal and confirmed the Director’s 1^st and 2^nd Decisions.

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

13.  The applicant has filed Form 86 dated 31 July 2019 for leave to apply for judicial review of the Board’s Decision.

14.  In the affirmation in support of his application, the applicant has raised the grounds below.

(1)  He considered that the Board was wrong in its decision because it had unlawfully fettered its discretion by refusing his appeal on the ground that they did not satisfy the requirement.

(2)  The adjudicator acted in a procedurally unfair manner in dealing with his appeal.

(3)  The Board’s Decision is unreasonable or irrational in the public law sense, or are a result of procedural errors or unfairness.

(4)  The Board failed to meet the greater care and duty owed to a self-represented claimant.

DISCUSSION

15.  As mentioned in paragraph 2, 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. I shall consider the merits of the applicant’s case.

16.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s 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).

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

18.  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.”

19.  The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded because his evidence was not credible. Those grounds under paragraph 14 are his bare assertions without any evidence in support. They are not valid to challenge the Board’s Decision.

20.  There is no reason that the Court should interfere with the Board’s finding of the facts.

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

DISPOSITION

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.