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

HCAL 1233/2019

[2024] HKCFI 351

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1233 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
	cconsideration of documents and Applicant being absent in open court;

1.   Extension of time to apply for leave for Judicial Review be granted;

2.   Leave to apply for Judicial Review be granted; and

3.   The applicant must issue the originating summons within 14 days after this order in accordance with Order 53, rule 5 of the RHC.

Observation for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 13 September 2018 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”).  His application filed on 8 May 2019 is late.  The deadline for the application is 13 December 2018.  The delay is serious.  I shall deal with this issue below.

2.  The applicant did not ask for a hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court, the applicant’s application is dealt with on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant is a national of India.  He entered Hong Kong on 22 May 2009.  However, he did not depart within the time limit and had overstayed since 30 June 2009.  On 1 July 2009, he raised a torture claim, which was treated as withdrawn on 12 October 2013 since he failed to return the completed torture claim form within the prescribed period.  He also absconded and failed to report to the Immigration Department.  On 17 May 2014, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by his uncles due to a land dispute.  He also feared that he would be killed by his cousin Surinder Singh (“SS”) because he witnessed a burglary committed by SS. 

5.  According to the applicant, his father had arguments over whether to sell the ancestral house with his uncles.  They often got into fights.  The fights over the ancestral house did not stop.  When the applicant grew up, he would then join the fights when he could.  In around 2002, one of his cousins was accidently killed during the fight, leading to a cool down of the dispute. However, in 2008, the dispute revived after his grandfather passed away.  The applicant stated that he had been living under great fear for his life and under mental stress. 

6.  Meanwhile, in around January or February 2009, the applicant witnessed the burglary committed by SS.  He was spotted by SS who threatened to kill him if he reported to the police.  As SS often wandered around his neighborhood, the applicant fled to Hong Kong for protection.  Details of his claim are set out at paragraph 8 of the Notice of Decision dated 7 December 2016 by the Director (the “Director’s 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 Decision, the Director dismissed the applicant’s claim.  In elaboration, the Director found that (i) the absence of past ill-treatments indicated an unlikelihood of future risk of harm [14]-[16]; (ii) state protection would be available to him [17]-[23]; and (iii) internal relocation was a viable option [24]. 

The Board’s Decision

9.  On 10 July 2017, the applicant appealed the Director’s Decision to the Board.  However, he was around 7 months late [8].  In the notice of appeal, he explained that he could not find the documents and could not contact his duty lawyer [8].  Having considered the explanation, the Board found that there was no documentary or other supporting evidence provided by the applicant [9]. Meanwhile, the applicant ought to establish the special circumstances that prevented him from lodging the notice of appeal/petition on time [11]. 

10.  The Board considered his immigration history and the fact that he was released on recognizance from 2 April 2014.  It also rejected the aforesaid explanation [12]-[13].  In these circumstances, the Board found that there was no matter known or revealed by the applicant that might amount to special circumstances.  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

11.  The applicant has filed Form 86 dated 8 May 2019 for leave to apply for judicial review of the Board’s Decision.

12.  In his affirmation in support of this application, he said that his life would be in danger if he returns to his country as his enemies had threatened to kill him.

DISCUSSION

13.  As mentioned in paragraph 1, 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.  The deadline of his application is on 13 December 2018 (as from 13 September 2018).  The delay is about 6 months (up to 8 May 2019).  He has given no explanation for his delay and his application can be dismissed on this basis alone.  Nevertheless, I shall first consider the merits of the applicant’s case.

14.  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).

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

16.  The question before me is whether the Board was correct to refuse to extend time for the applicant to file his notice of appeal.

17.  The Board, for the reasons it had given in the Board’s Decision, refused to extend time for the applicant to file his notice of appeal, which, in effect, amounted to dismissal of his appeal.

18.  The applicant’s application was filed on 10 July 2017.  Section 37 TZ of the Ordinance was amended and came into operation on 1 August 2021.  Under the old version of section 37TZ, the Board has to consider the merits of the applicant’s case.  The Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019, where the applicant was late in filing his notice of appeal to the Board and he had given no reason for such delay, held,

“18. …where there is a serious or significant breach for which no good reason is given, the decision maker moves to evaluate all the circumstances of the case with a view to dealing justly with the application.

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.”

19.  The amended version of section 37TZ of the Ordinance has done away with the consideration of the merits of the applicant’s case.  But the amended version does not have retrospective effect.

20.  It is obvious that the Board had not considered the merits of the applicant’s case before making its decision refusing to extend time for him to file his notice of appeal.

21.  I therefore find that the applicant succeeds to show that he has realistic prospect of success in his proposed judicial review.

CONCLUSION

22.  Therefore, I extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision and I further grant leave to the applicant for his intended judicial review.

23.  The applicant must issue the originating summons within 14 days after this order in accordance with Order 53, rule 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