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

HCAL 1919/2023

[2024] HKCFI 30

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1919 of 2023

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 present 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 17 August 2023 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), he appeared before the Court on 29 November 2023 and 11 December 2023.

The applicant

3.  The applicant, aged 49, is a national of India. He came to Hong Kong on the strength of a passport as a visitor. He did not depart after his permitted stay and overstayed since 13 August 2005. His claim for non-refoulement protection is on the basis that, if refouled, he will be harmed by Mr Dalip Singh and his sons, Ramana Golli, and Bhukhan because they considered that he had assisted the elopement of Dalip’s daughter with his friend in 2004.

4.  Briefly stated, in January 1999, some terrorists of Sikhs came to his home and asked for food. They then left and drove their motorbikes to Sevian Village. There was a gunfight there and a policeman was killed. The police officers suspected that he was associated with the terrorists and took him to the police station where they beat him with leather belt and kicked him. They also pushed his face into water. His other family members were also assaulted by the police officers. They were detained too. However, they were released to get bribe money. After they had paid the bribe, they discharged the applicant.

5.  The police arrested him again on the same suspicion on 15 August 1999 and beat him up inside the police station. They hanged him upside down and hit him with rod and wooden roll on his back and thigh. They discharged him after his family paid the bribe. On both occasions, he had to receive medical treatment and stay in hospital for recovery.

6.  The third arrest took place on 25 December 1999. He was arrested and detained on the same suspicion. It was not until the village elders had paid the bribe, they discharge him. He was detained for 3 days. He had lived in his aunt and his maternal grandparents in different towns for 4 years, undisturbed.

7.  The fourth arrest took place after he had returned to his home. There was a gathering and a fight took place. Someone was hurt on his head. Police came and arrested the applicant on the same suspicion. They took him to police station where they beat him up until he was unconscious. He was discharge after the village elder paid the bribe. He was seriously injured in the four arrests.

8.  His aunt took him to live with her in May 2005. A retired police officer advised him to leave for Hong Kong. He came to Hong Kong on 26 June 2005 as a visitor and he did not depart after his permitted stay.

9.  As to the risk from the Dalip’s family, the story started from his friend Anand, who had love affair with Dalip’s daughter, Neeta. They eloped in 2004. The Dalip’s family took it that he had assisted their elopement and they had assaulted him with hockey sticks. He was injured, but he managed to escape. Mr Dalip had reported the matter to police. The applicant thinks that the police will arrest him if he returns to India.

10.  He does not consider that the state will provide him with protection as he is now on the arrest list. Also, he does not consider internal relocation is his alternative because police will track him down and the Dalip’s family is well-connected in India.

11.  Details of the applicant’s story are set out in paragraph 6 of the Director’s Decision.

The Director’s Decision

12.  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”).

13.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that: (1) the evidence showed that his claimed level of risk of harm upon his return was assessed to be low [12]-[19]; (2) state protection was available to him [20]-[21]; and (3) internal relocation was available to him [22].

The Board’s Decision

14.  The applicant appealed the Director’s Decision to the Board. He sent his notice of appeal to the Board on 24 July 2023. He was out of time. The Director’s Decision was served on the applicant’s duty lawyer on 19 July 2022. The delay is almost a year [19].

15.  In section 5 of Application for Late Filing of Appeal/Petition, the applicant stated:

“-My reasons are very simple for late filing, that is as follows:

-I was waiting for evidence from India for using it support of my appeal.

-That I still did not get all evidence because of the incidents happened in Punjab in recent months.

-I attached the two photocopies of letters sent to me by my father and mother. Original I will show in the hearing of my appeal.”

16.  The Board had made the following findings:

“20. I have had regard for the matters set out in section 37ZT in considering whether to extend the time for the application to the Board and, therefore, to allow the late filing.

21. I note that the Appellant has been in prison, and it may have been more difficult for him to send and receive correspondence. I have also had regard to his explanation that he was waiting for documentation from India. However, the Appellant has been in Hong Kong for several years and he has had considerable opportunity to provide documents. He has also had considerable time to make the application after the Director made the decision. I am not satisfied that the Appellant has satisfactorily explained why the application was late. The Appellant had sufficient time from when he received the decision to make the application to the Board.

22. The amended version of section 37ZT is such that it requires me to only consider the statement provided and any supporting documentation. I am not satisfied, therefore, based on the statement and supporting documents establish that the Appellant has exercised all due diligence to make the application within the required time but that he failed to do so due to circumstances beyond his control.”

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

17.  The applicant has filed Form 86 dated 25 October 2023 for leave to apply for judicial review of the Board’s Decision.

18.  In support of his application, the applicant submitted that:

(1)  He disagrees with the Director’s Decision and the Board’s Decision.

(2)  He considers that he had committed no mistake for his late filing of the notice of appeal with the Board because he was detained by the authority and he did not have any legal assistance or interpretation service for him to prepare his notice of appeal.

(3)  He considers that the Board had not attained high standards of fairness as it did not hear his explanation for being late before it disallowed extending time for his late filing.

(4)  There was no interpretation of the Board’s Decision to him and he did not understand the reasons of the Board.

(5)  The Board failed to analyze the substance of his claim, making a specific assessment of the risk to him.

(6)  The Board failed to consider the wealth of COI available.

(7)  There was no evaluation of the risk specific to him in light of his vulnerabilities [by the Board].

(8)  The Board had not taken into consideration the updated situation in India.

DISCUSSION

19.  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).

20.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that Director of Legal Aid had refused his application and he understands the Board’s Decision. He further said he wants the Court to re-consider his case and he wants to apply for legal aid again. He said that he is waiting for the result of his application for Habeas Corpus.

21.  The question before this Court is whether the Board is correct not to extend time for the applicant to file his notice of appeal under the circumstances.

22.  Section 37ZT of the Ordinance has been amended and is operative on 1 August 2021. The new section reads:

“Late filing of notice of appeal

(1) If a notice of appeal is filed after the expiry of the 14-day period referred to in section 37ZS(1), it must include an application for late filing of the notice, which—

(a) must include a statement of the reasons for failing to file the notice within that period; and

(b) must be accompanied by all available evidence relied on in support of the reasons referred to in paragraph (a). (Amended 7 of 2021 s. 19)

(2) The Appeal Board must decide, as a preliminary decision without a hearing, whether the Board allows the late filing of the notice of appeal under subsection (3), and in doing so, the Board may only take account of the statement of reasons stated in the application for late filing of the notice of appeal and the evidence relied on in support of the reasons. (Amended 7 of 2021 s. 19)

(3) The Appeal Board may allow the late filing of the notice of appeal if the person filing the notice provides sufficient evidence in writing to satisfy the Board that the person—

(a) had exercised all due diligence to file the notice within the period specified in section 37ZS(1); but

(b) failed to file the notice within the period because of circumstances beyond the person’s control. (Replaced 7 of 2021 s. 19)”

23.  The Board was satisfied that the Director’s Decision had been duly served on the applicant. There is no dispute that the applicant was late to file his notice of appeal. The delay is almost a year.

24.  The grounds in support of this application are, insofar as complaining that the Board did not consider the merits of his case, are irrelevant because the Board decided not to extend time for him to file his notice of appeal. The Board will therefore not consider the merits of his case. Insofar as his complaint that the Board did not hear his explanation before making its decision not to extend time for him to file his notice of appeal out of time, this is expressly provided under section 37ZT(2) of the Ordinance. Insofar as his complaint that there was no legal representation or interpretation for him, the Court of Appeal had decided that the applicant is not entitled to free legal representation or interpretation all the time throughout the proceedings[1]. From the “Reasonable Grounds for Continuing Proceedings” prepared and signed by the applicant, it is apparent that the applicant is able to understand and express himself in English.

25.  The Board had considered the applicant’s explanation for his delay in filing his notice of appeal and, for the reasons given, the Board did not accept his explanation.

26.  There seems to be no reason for the applicant to have taken such a long time to prepare his notice of appeal. Even if he was detained, he may ask the authority to assist him to obtain the notice of appeal form. He has not stated any reason why this could not be done. As to the documents he mentioned that he is still trying to obtain from India, he has not stated what documents they are. He is supposed to provide all the information in support of his claim to the Director for the Director’s consideration under section 37ZA(1) of the Ordinance[2].

27.  In the circumstances, the Board was entitled to take the view that the applicant had failed to give acceptable reasons for his delay. The Board was therefore right to refuse to extend time for the applicant to file his notice of appeal. There is no valid reason from the application to challenge the Board’s Decision. This Court should not interfere with the Board’s Decision.

28.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

29.  I refuse 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