Case Detail

HCAL 838/2017

[2020] HKCFI 1522

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 838 OF 2017

________________________

BETWEEN

	AMRIT SINGH	1^st Applicant
	GURJIT KAUR	2^nd Applicant
	RE: A	3^rd Applicant
	and
	TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE	Putative Respondent
	and
	DIRECTOR OF IMMIGRATION	Putative Interested Party

________________________

Before:

Hon Campbell-Moffat J in Chambers

Date of Hearing:	19 June 2020
Date of Decision:	19 June 2020

________________________

D E C I S I O N

________________________

Introduction

1. This is an application dated 22 May 2020 to appeal my decision of 19 December 2018, refusing leave to apply for judicial review. The applicants had 14 days in which to apply to appeal that decision. They did not do so. They now require leave to extend time to appeal against that order. The applicants attended in person with the assistance of a Punjabi interpreter. The 1^st Applicant addressed the court on behalf of his family.

Procedural Background

2. The applicants are claimants under Article 3 of the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment. The 1^st, 2^nd and 3^rd applicants entered Hong Kong illegally on 29 October 2014. They surrendered to the Immigration Department on 25 November 2014. The 1^st and 2^nd applicants submitted non-refoulement claims on 27 January 2016 and were interviewed by the Director of Immigration (“the Director”) on 26 February 2016. The Director dismissed their claim under all heads, by Notice of Decision on 20 June 2016 and by Notice of Further Decision on 11 July 2017. They appealed those Decisions to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Mr Wesley Wong, heard them on 9 October 2017. The adjudicator refused their appeal on 20 October 2017.

3. The applicants filed a notice of application on a Form 86 seeking leave to apply for judicial review on 3 November 2017 and did not request an oral hearing. The matter was therefore considered on the papers. Their application for leave to apply for judicial review was refused on 19 December 2018. They had 14 days from that date to appeal that decision which would have expired on 2 January 2019. By way of summons dated 22 May 2020, they seek leave to appeal out of time.

4. An applicant does not require leave to appeal against a CFI judge’s refusal to grant leave to apply for judicial review (Order 59, rule 21(1)(g)). The applicant may appeal as of right. However, an applicant who wishes to appeal against a CFI judge’s refusal to grant leave to apply for judicial review, which is an interlocutory order, has to observe the time limits for appeal under Order 53, rule 3(4) the Rules of the High Court which allows 14 days. Where the applicant is out of time to appeal against a judge’s refusal to grant leave to apply for judicial review, an extension of time may be granted by a judge of the Court of First Instance under Order 59 rule 2B(6). The Court is required to consider (1) the length of the delay; (2) the reasons for the delay; (3) the prospect of success in the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted[1].

5. In order to obtain that leave, an application must be made promptly and it must be supported by an affirmation or affidavit deposing to any facts relied upon by the applicant and giving a full account of and explanation for the whole of the delay since time expired.

6. Whilst the granting of an extension of time is entirely within the discretion of the court, the applicant is required to explain the reasons for his delay as this forms part of the consideration of whether there is good reason to allow an extension of time. The applicants accepted they were late and gave no reason within their Affidavit as to why that was the case. They had at all times lived at the same address and could not provide any reason for why they had not received the CALL-1 Form. The Court file suggests that it was properly served upon the address given at that time, which is the same address the applicants use today. It may be that the applicants were not expecting the CALL-1 Form as they had attempted to withdraw their application for leave to apply for judicial review by means of a letter dated 7 December 2018. This was because they had decided to return to India. They still wish to return to India but would prefer a delay because of the current pandemic. The applicants’ sole reason for applying for leave out of time is to extend time before they return to their home country.

7. In considering an application for an extension of time, this court is required to examine whether there is any merit in the applicants’ appeal[2]. Whether there is any such merit will depend upon well-established legal principles[3] including the fact that the Court in judicial review is not to provide a further avenue of appeal on the merits of the underlying claim. The applicants have been frank in submitting they have no grounds of appeal. They do not seek to review the exercise of a judicial function, they merely want a stay of execution to return to India when the pandemic is under control. As such, it is clear that there is not a reasonable prospect of success in the intended appeal[4].

Conclusion

8. The applicants have now been in Hong Kong since 2014. They have been interacting with various government agencies since that date. The explanation they have offered to this court, as to why they did not receive the order is not acceptable but in any event they no longer wish to pursue their claim.

9. I have considered their underlying application. It has no merit as explained in the initial refusal of leave. There were no grounds of review and none could be ascertained from the papers. There was no complaint before the Court as to the decision to refuse leave. The applicants simply wish this Court and the Court of Appeal to allow them a little longer in Hong Kong. Having considered the length of delay, reason for the delay and underlying merits of their application, it would not be in the interest of justice to grant an extension of time in all the circumstances of this case.

10. The applicant’s summons dated 22 May 2020 be dismissed.

	(A P Campbell-Moffat)
	Judge of the Court of First Instance High Court

The applicants appeared in person.

[1] Chee Fei Ming v Director of Food and Environmental Hygiene [2015] 4 HKC 134; Wong Yuk Man v Ng Leung Sing & Anor [2016] HKCU 157 (HCMP 3217/2015, 22 January 2016)

[2] Re Mehmood Ikhlas CAMP 28/2019 [2019] HKCA 567; Re MK HCMP 2609/2016; Re Gurung Min Bahadur CAMP 9/2018, [2018] HKCA 226

[3] Nupur Mst v Director of Immigration CAMP 54/2018 [2018] HKCA 524; Re Md Shohel Sheak CACV 233/2018 [2018] HKCA 714

[4] Re Ansar Muhammad[2018] HKCA 227

HCAL 838/2017

[2018] HKCFI 2754

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 838 of 2017

BETWEEN

	Amrit Singh	1^st Applicant
	Gurjit Kaur	2^nd Applicant
	Re:A	3^rd Applicant
	and
	Torture Claims Appeal Board / Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

consideration of the documents only; or
consideration of the documents and the Applicant being present/absent in open court;

Order by The Honourable Mrs Justice Campbell‑Moffat:

Leave to apply for judicial review be refused.

Observations for the Applicant:

Procedural history

1. The applicants entered Hong Kong legally on 29 October 2014 and thereafter overstayed. They surrendered to the Immigration Department on 25 November 2014. The 1^st and 2^nd applicants submitted a non-refoulement (“NRF”) claims by way of written representation on 5 February 2015 and the 3^rd applicant on 8 October 2015. Their NRF claim form was submitted on 27 January 2016.

2. The applicants attended a screening interview on 26 February 2016. The Director of Immigration (“the Director”) dismissed their claim on all grounds (not including that under BOR 2) by Notice of Decision (“the Decision”) on 20 June 2016 and by Notice of Further Decision (re BOR 2) on 11 July 2017. They appealed the Decision to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Mr Wesley Wong (“the Adjudicator”), heard their appeal on 9 October 2017. The Adjudicator considered their appeal on all applicable grounds including BOR 2 and refused their appeal on 20 October 2017.

Background

4. The applicants are Indian nationals. They come from the Punjab. This claim arises out of an inter‑caste marriage which was not approved by the 2^nd applicant’s family. The 1^st applicant is a Sikh from the Carpenter caste. The 2^nd applicant is also a Sikh but from the Chhimbe caste. Her father is the head of (or Surpanch) of her village. They were both born in 1985. The 3^rd applicant was born in Hong Kong on 10 August 2015. In 2013 the 1^st applicant worked as a carpenter in the 2^nd applicant’s family home. At this time, the 2^nd applicant was working as a teacher. A relationship grew between them but they were warned that the difference in their social status would prohibit marriage. Nevertheless, the couple did get married, in secret, on 15 September 2013 but told no one and continued to live separate lives until the 2^nd applicant’s parents arranged a marriage for her, at which point she had to disclose her married status. The family were very angry and threatened to kill the 1^st applicant. The couple fled to the Golden Temple in Amritsar where they remained for the next few months. However, whilst there, the 1^st applicant was attacked by the 2^nd applicant’s family. He received an injury to his hand but did not seek medical treatment for it. The couple did not report the incident to the police, instead they came to Hong Kong.

The non-refoulement claim

5. Under the Unified Screening Mechanism (“USM”), the applicants’ claim is to be assessed on all applicable grounds which are:

i. Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”). Under torture risk, the applicants must establish they have substantial grounds for believing they will be subjected to torture if returned to their home state. Those grounds cannot be speculative or theoretical and the risk of torture must be real and personal. The standard of proof is a low one.
ii. Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBORO”), Cap 383 and Article 7 of the ICCPR (“BOR 3 risk”). Under BOR 3, the applicants must establish that they have a genuine and substantial risk of being subject to mental or physical torture; cruel, inhuman or degrading ill treatment; or punishment, if returned to their home state. The level of such mental or physical torture etc. must reach a minimum level of severity.
iii. Risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”). Under “persecution risk”, the applicants must establish that they have a well-founded fear that there is a real chance that they will face persecution based upon race, religion, nationality or membership of a social group or political opinion if they are expelled and returned to their home state.
iv. Risk of a violation of the right to life under Article 2 of section 8 of the HKBORO, Cap 383 and Article 6 of the ICCPR (“BOR 2 risk”). Under BOR 2, the applicants must establish a real risk that they will be arbitrarily deprived of their lives, have a death penalty imposed upon them; or be the victims of genocide or otherwise be deprived of their rights under BOR 2.

6. It is the duty of both the Director and the Adjudicator to weigh all of the available credible, reliable evidence and ascertain whether the applicants had established the factual basis of their claim. The Director and the Adjudicator must then assess the level of harm the applicants say they fear. Each ground of claim above has a relevant level of risk. It is for the applicants to establish that they are the subject of such risk. Under the HKBORO, they must show substantial grounds for believing that the harm which they fear is “foreseeable, real, personal and present”. The question is whether there is a real riskor real chance of the occurrence or recurrence of the harm which they fear.

Decision and Further Decision of the Director

7. The applicants seek to review the Decisions of both the Director and the Adjudicator. As the applicants have already utilised the channel of appealing the Director’s decision to the TCAB and the TCAB treated the appeal as a rehearing, the Decision of the Director is not susceptible to judicial review once an appeal to the Board has been pursued by the claimants and dealt with[1].

Decision of the Adjudicator

8. The Adjudicator analysed the applicants’ claim on all applicable grounds. He arranged for an oral hearing and treated the appeal as a rehearing. He correctly set out the law and key legal principles including the burden and standard of proof. This was a very simple claim based upon facts which at their highest amounted to an incident with a knife, which did not necessitate medical intervention. There was no political element. This was a private family matter. Accordingly, the applicants have not established that they fell under any head of claim to the requisite standard.

Leave to apply for judicial review

9. Judicial review is not a rehearing of the merits of the applicants’ original application for refugee status. This is an application to apply for leave to judicially review the Decision of the Adjudicator. The applicants must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by the Adjudicator when dealing with their application in order to obtain leave to judicially review him.

Grounds of review

10. The applicants have submitted eight grounds of review against the decision of the Adjudicator. They can be synthesised into the following complaints:

I. The Adjudicator acted irrationally and/ or unreasonably, in that he:
a. failed to consider the concept of state acquiescence and/or the extended form of state acquiescence;
b. failed to place weight on relevant information;
c. placed weight on irrelevant information, or incorrect or inaccurate facts;
d. failed to consider a consistent system of human rights violations;
e. failed to consider if state protection exists in Pakistan;
f. failed to consider or place weight on relevant COI and cherry picked that which he chose to consider;
II. There was procedural impropriety in that the Adjudicator:
a. made insufficient enquiry;
b. failed to investigate COI;

11. There are no particulars provided for any of the applicants’ grounds. They are copied from grounds submitted in other applications for judicial review and, without more, are wholly unhelpful to the applicants and a waste of judicial time. In several respects they are wholly irrelevant and bear no relation to the matters at hand. The applicants have a duty to state the grounds of their intended judicial review and why they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. It is incumbent upon the applicants to make good their grounds, which they have failed to do. Without more, the court is restricted to that which is self‑evident from the papers. All of the applicants’ grounds are without merit either for the reasons given above or because the issue does not arise in all the circumstances of this case.

Conclusion

12. Despite the fact that the applicants did not submit any grounds of review, I have considered the papers and grounds carefully. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. This was a very simple claim without factual merit. Despite the onus being upon the applicants, the Adjudicator engaged in a joint endeavour with the applicants and considered all relevant criteria; gave the applicants a reasonable opportunity to state their case and enquired into that case appropriately. There is no criticism of that determination, which was open to the Adjudicator on the facts and eminently reasonable.

13. In my judgement, there is no reasonably arguable basis upon which the applicants could found a claim for judicial review and, as such, there would be no realistic prospect of success if they were to be granted leave. I therefore refuse leave for judicial review.

Dated 19^th day of December 2018.

(Ms Queenie Mak)
for Registrar, High Court

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

Notes for the Applicant:

If leave has been granted, the Applicant or his solicitors must:

a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);

b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and

c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).

Sent to the Applicant on 19/12/2018
Amrik Singh
Gurjit Kaur
Re:A

Applicant’s ref. no:
Nil.

Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 19/12/2018

Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 4007/16/6/197/IN922
USM 4008/16/6/198/IN923
USM 4009/16/6/199/IN924

Director of Immigration
Putative Interested Party’s ref. no.:
RBCZ/9002389/17 (formerly RBCZ/10604/15)
RBCZ/9002370/17 (formerly RBCZ/10603/15)
RBCZ/9002412/17 (formerly RBCZ/539/15)

Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)

Form CALL-1

[1]Re Moshsin Ali CACV 54/2018; [2018] HKCA 549

AMRIT SINGH AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE [Decision on Leave Application]

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