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

HCAL 1307/2018

[2021] HKCFI 732

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1307 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 13 August 2015 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). The applicant has put down the date of 3 July 2018 as the date of the decision, which he intends to have judicial review upon. Enquiry had been made with the Board, which confirmed that there was no such decision delivered by the Board on that day on the applicant’s case. This date is therefore a typo, which will be amended accordingly.

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. It is further amended that the date of the decision on Form 86 for judicial review should be 13 August 2015 instead of 3 July 2018.

The applicant

4.  The applicant is an Indian national. He came to Hong Kong illegally on 9 March 2015 and was refused entry by the Immigration Department. He then lodged a non-refoulement claim.

5.  He claimed that if refouled, he would be harmed by the Pakistani Army stationed at the India-Pakistan border, the Chamrail border, which is 5 km. from his home. He claimed that there were conflicts between the Indian Army and the Pakistani Army from time to time. In November 2014, a Pakistan school was attacked by the Indian Army. Some teachers and pupils were killed. In December 2014, the Pakistani Army attacked the Indian Army at Chamrail border and they exchanged gunfire. His wife and children were received by his in-laws. They did not allow him to join them because they looked down upon him. He had to leave his home and live in other places with his friends. He had returned to his home town once and found that all his assets, including the cattle had been taken away. He reported loss to police. But they said that they could not assist him. Upon his friend’s advice, he came to Hong Kong. Details of the incidents are set out in paragraph 4 of the Director’s Decision described below.

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 15 May 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 the Pakistani Army upon his return to India was assessed to be low [17]; that state protection was available to him [20] and internal relocation was an option open to him [21].

8.  By Notice of Further Decision dated 23 December 2016 (“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 being arbitrarily deprived of his life if he returned to India [6].

The Board’s Decision

9.  The applicant appealed to the Board against the Director’s Decision and the Director’s Further Decision. However, he was late in filing the Notice of Appeal. According to the Board, the Notice of Appeal was filed on 2 June 2015, which is one day late. But the Notice of Appeal was incomplete in that Section 5 was not filled in and there was no signature at Section 6. The Notice of Appeal was corrected and was filed on 9 June 2015, which is 8 days’ late.

10.  The Board did not dismiss his Notice of Appeal on that ground alone. It went further to consider the merits of the applicant’s case and concluded that his case was not within the ambit of any of the non-refoulement claims for the reasons below.

(1)  He had never been harmed by the Pakistani Army stationed at the India-Pakistan border. He had not even been touched by the Pakistani Army.

(2)  None of the incidents he described showed that he was physically or mentally harmed.

(3)  His fear was only because of the conflicting India-Pakistan situation at the Chamrail border which had long been antagonizing each other.

(4)  The conflict at the Chamrail border was only between the Indian and Pakistan Army and had nothing to do with him. His fear, if any, does not fall within the definition of persecution.

(5)  The Board went further to consider his grounds of appeal and found that it was only a repetition of his case and there was no substance in it.

Application for leave to apply for judicial review

11.  The applicant filed Form 86 on 6 July 2018 for leave to apply for judicial review of the Board’s Decision.

12.  In his affirmation in support of his application, he said that he could not go back to his own country because it was unsafe.

DISCUSSION

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

14.  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.”

15.  I am aware of the Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019 held that notwithstanding of the applicant being late in his appeal,

“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.”

16.  The Board had already taken the merits of his case into consideration and came to its conclusion that his case did not fall within the protection of any of the risks set out in paragraph 6 above.

17.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The Board had considered the merits of his case before it made its Decision not to extend time to the applicant to file his Notice of appeal. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

18.  There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.

CONCLUSION

19.  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