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

HCAL 1048/2019

[2022] HKCFI 1814

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1048 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 of Torture Claims Appeal Board’s decision dated  

21 March 2019 be granted.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the decision dated 21 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dismissing the applicant’s claim on BOR2 risk[1] (“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 last attempted to enter Hong Kong on 7 October 2015 and was refused 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 Gurjant Singh (“GS”).

5.  According to the applicant, GS was affiliated with Shiromani Akali Dal party (“SAD”).   The applicant inherited the family farmland from his father in 1994.  In May 2015, GS visited the applicant and demanded the transfer of the family farmland to him.  The applicant refused as the farmland was the only source of income for his family.  Met with the refusal, GS threatened and later assaulted the applicant.  The applicant’s report to the police was of no avail.  Out of fear, the applicant escaped to other villages and eventually fled to Hong Kong for protection.  Details of his claim are set out at paragraph 6 of the Notice of Decision dated 2 December 2015 by the Director (the “Director’s First Decision”) and paragraphs 6 to 15 of the decision dated 21 March 2016 by the Board (the “Board’s First Decision”) described below. 

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 Direct7or’s First Decision, the Director dismissed the applicant’s claim on Torture risk, BOR3 risk and Persecution risk for the low level of risk of harm upon his refoulement.  The Director found that (i) the alleged death threats from GS was never materialized and it was only a private dispute without state involvement [12]-[14]; (ii) state protection would be available to him [15]; and (iii) internal relocation was a viable alternative [16]. 

8.  Thereafter, for reasons set out at the Notice of Further Decision dated 2 March 2017 that there was no evidence to show that the applicant’s right to life under BOR2 would be violated upon his return, the Director also rejected the applicant’s claim under BOR2 risk (the “Director’s Second Decision”).

The Board’s Decisions

9.  The applicant first appealed the Director’s First Decision to the Board.  On 1 March 2016, the Board conducted an oral hearing for his appeal. The Board considered that certain material aspects of his claim were problematic.  For example, the applicant failed to provide any documents to show that he was the sole registered owner of the family farmland; and the law in India would not entitle GS to own the land even if he killed the applicant. Nevertheless, the applicant refused to make any comments to address these concerns [16]-[19].

10.  Having considered the evidence and the country of origin information (“COI”), the Board found that the applicant failed to prove the centerpieces of his claim [46]-[57].  As a result, the Board rejected his claim under Torture risk, BOR3 risk and Persecution risk and dismissed his appeal against the Director’s First Decision.

11.  On 7 July 2017, the applicant filed a notice of appeal/petition against the Director’s Second Decision.  The 14-day time limit for filing such appeal expired and the applicant was late by more than 3 months.  As a result, the Board proceeded to consider whether to allow the applicant’s late filing pursuant to section 37ZT of the Ordinance.

12.  In his notice of appeal, the applicant explained that the applicant was delayed due to lack of language assistance [12].  The Board considered the applicant’s delay to be serious and significant [18].  It also rejected the applicant’s explanation [19]-[21].  As a result, by way of the Board’s Second Decision, the Board refused to allow the applicant’s late filing 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 17 April 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 enclosed the Board’s Second Decision without specifying any particular ground.

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 for determination is whether the Board is correct in its Second Decision, which refused to extend time for the applicant to appeal against the Director’s Second Decision.

18.  The Board has followed the legal principles stated in HCAL 9/2016 (a local authority) and other UK cases[2]. The local authority construed section 37ZT(2)(b) of the Ordinance, which mandates the Board to consider “any other relevant matters of fact”:

“49. Section 37ZT(2)(b) allows the TCAB to consider any other relevant matters of fact known to them. I do not think this subsection meant that the TCAB should sit back and limit its mind to the documents before them. While this subsection does not create a positive duty to inquire, high standard of fairness may warrant some inquiry to clarify ambiguities apparent to the TCAB. The nature and extent of this kind of inquiry depend on individual cases. I anticipate that it would only be necessary in very limited circumstances. That said, I must stress that it is always the burden of the applicant to explain the late filing with supporting evidence.”

19.  This paragraph sets out the focus of the Board’s consideration where the applicant has delayed in filing the notice of appeal. The date of this judgment is 26 January 2017. The Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377 dated 2 April 2019 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 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 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.”

20.  The Board’s Second Decision is dated 21 March 2019, which is a few days before the above Court of Appeal’s judgment on 2 April 2019.  However, the Court of Appeal’s decision takes precedent over the Court of the First Instance’s judgment.  The Board had, in the Board’s First Decision, 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.  On this basis alone, it seems that the Board’s Second Decision can be challenged.

21.  It is clear that the applicant does have a realistic prospect of success in his proposed judicial review against the Director’s Second Decision.

CONCLUSION

22.  I therefore grant leave to the applicant to apply for judicial review of the Board’s Second Decision. The applicant must issue the originating summons for hearing within 14 days after the grant of leave in accordance with Order 53, rule 5(5) of the RHC.

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

[1] As defined at paragraph 6 below.

[2] Paragraph 10 of the Board’s Second Decision