RE SAFRI SURJIT SINGH

HCAL 207/2019

[2022] HKCFI 1628

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 207 OF 2019

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D E C I S I O N

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The application

1.  The applicant is an illegal immigrant and he lodged a non-refoulement claim with the Director of Immigration (the “Director”). The Director, by his Decision, rejected his application and he appealed to the Torture Claims Appeal Board (the “Board”). Having considered his evidence, the Board, by its Decision (the “Board’s Decisions”), rejected his appeal and affirmed the Director’s Decision.

2.  Pursuant to Order 53, rule 3(2) of the Rules of the High Court (“RHC”), the applicant filed Form No. 86 to apply for leave to apply for judicial review of the Board’s Decision.

3.  By Form CALL-1 dated 4 April 2022 (the “Court’s decision”), the Court dismissed his application for the reason that there is no realistic prospect of success in his intended judicial review. The deadline for her to file her notice of appeal is 19 April 2022 (within 14 days after such order).

4.  The applicant filed a summons on 17 May 2022 for appeal against the Court’s decision out of time.

5.  In his affirmation in support of his application, he said he did not receive the Court’s decision. According to the court’s record, the Court’s decision was sent to the applicant’s last known address on 4 April 2022 by ordinary post. He is deemed to receive the same on the next following day, not being a specified day such as Saturday or a general holiday.[1] He is therefore deemed to have received the Court’s decision on 6 April 2022.

Discussion

6.  Pursuant to Order 32, rule 11 and 11A of the RHC, having considered the applicant’s reasons, I decide to determine this application without an oral hearing.

7.  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. I shall consider the merits of the case.

8.  In Re Adumekwe Rowland Ejike[2019] HKCA 702, the Court of Appeal held:

“19. The prospect of success of the intended appeal is important: the court will not grant extension for a hopeless appeal to be pursued, see Re Rahman Wasif[2019] HKCA 299 at [13]; Re Kpamou Gbotoi Bernard[2019] HKCA 168; and Re Irshad Muhammad[2018] HKCA 864 at [16].”

9.  The applicant claimed that if refouled, he would be harmed or killed by Sabi. According to the applicant, he was a Sikh.

10.  The Director found that the level of risk of harm upon his refoulement was assessed to be low because (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [18]-[20]; (ii) state protection was available to him [21]; (iii) internal relocation was also an option open to him [22]. The references refer to the Director’s Decision. He appealed to the Board.

11.  The Board rejected his factual evidence and dismissed his appeal.

12.  The applicant is unable to set out any valid ground to challenge the Board’s Decision. Nor can he point out any error on the part of the Court in the assessment of his application.

13.  There is no realistic prospect of success in his intended appeal. I therefore refuse to extend time for him to appeal and dismiss his application.

The applicant was unrepresented.

HCAL 207/2019

[2022] HKCFI 896

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 207 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 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 31 December 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”).

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.

The applicant

4.     The applicant is a national of India.  He attempted to enter Hong Kong on 25 November 2010 but was refused permission to land.  On the same date, he lodged a torture claim which was rejected on 9 December 2011.  On 11 April 2014, he lodged a non-refoulement claim which was assessed on all applicable grounds other than the ground of torture risk[1].

5.     The applicant’s claim was made on the basis that, if refouled, he would be harmed or killed by Sabi.  According to the applicant, he was a Sikh.  In May 2010, he developed a romantic relationship with a girl who was a Hindu. The interreligious relationship was disapproved by the girl’s family.  In November 2010, the girl’s elder brother Sabi attacked the applicant with hockey bat.  He sustained bruises and abrasions and received medical treatments.  The report to the police of the attack was of no avail as Sabi’s family was rich and influential.  Afterwards, the applicant also found that Sabi had been stalking him.  Out of fear, he fled to Hong Kong for protection.  Details of his claim were set out at paragraph 9 of the Notice of Decision dated 25 April 2018 by the Director (“the Director’s Decision”) and paragraphs 14 to 28 of the Board’s Decision as described below.  

The Director’s Decision

6.     The Director considered the applicant’s claim in relation to the following risks:

(1)   risk of violation of the right of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (“BOR 2 risk”);

(2)   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

(3)   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 Director’s Decision, the Director refused the applicant’s claim on the grounds of BOR3 risk, BOR2 risk and Persecution risk.  The Director found that the level of risk of harm upon his refoulement was assessed to be low because (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [18]-[20]; (ii) state protection was available to him [21]; (iii) internal relocation was also an option open to him [22]. 

The Board’s Decision

8.     The applicant appealed the Director’s Decision to the Board.  The Board scheduled an oral hearing on 19 November 2018 for his appeal.

9.     The Board observed that the dispute arose from the romantic relationship between the applicant and his girlfriend.  However, in light of the circumstances, such as the applicant’s easy abandonment of the relationship and his eight-year separation with her, the Board found that the bondage between them was not strong and, on the applicant’s own evidence, the chance of getting back with her was slim [37]-[41].  As a result, the Board found that the claimed continued threat from Sabi was baseless [42]-[44].  It also found that Sabi was at worst a local hooligan who should be amenable to law [46].  In the circumstances, the Board rejected the applicant’s claim and dismissed his appeal.    

Application for leave to apply for judicial review

10.     The applicant filed Form 86 on 22 January 2019 for leave to apply for judicial review of the Board’s Decision.

11.     In his affirmation in support of his application, he enclosed the Board’s Decision without setting out any specific ground in support of his application.

DISCUSSION

12.     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 CA, §40 and Nupur Mst v Director of Immigration[2018] HKCA 524, §14 (1).

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. (1).… …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.     The applicant has not raised any valid ground to challenge the Board’s Decision.

16.     The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

17.     There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

18.     I therefore refuse to grant leave for the applicant to apply for judicial review.  Accordingly, I dismiss his application.

Dated the 4^th day of April 2022

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] risk of torture under Part VII C of the Immigration Ordinance, Cap. 115