Case Detail

HCAL 813/2019

[2023] HKCFI 733

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 813 OF 2019

____________

BETWEEN
	Ashwani Kumar	Applicant
	and
	Torture Claims Appeal Board /	Putative
	Non-refoulement Claims Petition Office	Respondent
	and
	Director of Immigration	Putative
		Interested Party

____________

Before:

Deputy High Court Judge To in Chambers

Date of Decision:

13 March 2023

______________

D E C I S I O N

______________

INTRODUCTION

1. This is the Applicant’s application by summons filed on 26 September 2022 (the “Summons”) for extension of time to appeal the order of Deputy High Court Judge P Li (“DHCJ P Li”) dated 2 December 2021 (the “Order”) refusing his application for leave to apply for judicial review (the “leave application”) of the decision (the “Decision”) of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 8 March 2019.

THE LAW

2. Under Order 53, rule 3(4) of the Rules of the High Court, where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal the judge’s order to the Court of Appeal within 14 days after such order was made. By the time when the Summons was filed, the application is nine months and ten days out of time, which is very substantial in the context of a fourteen-day appeal period.

3. In Jagg Singh v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office[1] and AW v Director of Immigration and William Lam[2], the Court of Appeal held that what may constitute a good reason for extending time cannot be defined. In most cases, this would be a “multi-faceted question” the answer to which would depend on the circumstances of each case. The following factors, which are not exhaustive, are likely to be of significance in determining whether to grant extension of time:

(1)  length of delay;
(2)  reasons for the delay;
(3)  prospect of success in the intended appeal; and
(4)  prejudice to the respondent if extension was granted.

Usually, prospect of success in the intended appeal is the determinant factor. If the delay is short and there are reasonable explanations for the delay, the Court would be more relaxed in respect of the other factors.

LENGTH OF DELAY AND REASONS FOR THE DELAY

4. The Applicant is currently detained in Castle Peak Bay Immigration Centre which is his address as stated in the Summons. The Court noted that he had given an address in Tuen Mun in his Form 86 in March 2019 when he made the leave application and it was to that address that the Order and Form CALL-1 were sent on 2 December 2021. In the intervening period the Court had not received any notice from the Applicant about his change of address. The Order and Form CALL-1 had not been returned through the mail. The first time the Court was informed about his address in Castle Peak Bay Immigration Centre was 5 September 2022 when he wrote to request for a copy of the decision relating to his leave application.

5. There is no information when the Applicant moved out of the Tuen Mun address. If he had moved before 2 December 2021 he could not have received the Order and Form CALL-1. But he only had himself to blame for not informing the Court of his change of address and be responsible for the consequences: see Karamjit Singh[3]. If he moved after that date he may have an explanation for the delay provided he could produce convincing proof to substantiate his explanation. The possibility that the Order and Form CALL-1 had been lost through the mail is rather slim because the delivery service of Hong Kong Post is usually very reliable and the Court staff are under very strict instruction to issue Court orders on the date as stated on the order and to the correct address known to the Court. There is no explanation from the Applicant for the non-receipt. For reason as explained below, there is no need to undergo such enquiry with the Applicant.

GROUNDS OF APPEAL AND PROSPECT OF SUCCESS OF THE INTENDED APPEAL

6. The Applicant’s ground of appeal as stated in his Summons which he repeated in his supporting affirmation is that he did not want to go back to his home country because his life is in real risk there. The essence of his appeal is that he disagreed with the Board’s finding of fact that it is safe for him to return to his home country.

7. It is well settled law that the role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. In a judicial review, the court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[4]. The Board’s Decision is basically a finding of fact which the Court in a judicial review will not interfere save for errors of law, procedural unfairness and irrationality in its Decision. For reasons as explained in Paragraphs 17 to 20 of the Form CALL-1, DHCJ P Li could not find any such vitiating elements and, hence, refused his leave application.

8. By his intended appeal, the Applicant is seeking to challenge DHCJ P Li’s finding that the Board’s Decision had not been tainted by any of the above vitiating elements, which is the sole ground for which the Court may review the Decision of the Board; but he has not provided any arguable basis for challenging DHCJ P Li’s decision. Having rigorously re-examined the Decision, the Form CALL-1 and all the papers with anxious scrutiny, this Court is unable to detect any such vitiating elements. Thus, the Applicant’s intended appeal has no prospect of success.

PREJUDICE TO THE RESPONDENT

9. The prejudice to the proposed respondent and to public administration if a challenge is allowed to proceed is obvious. The delay is by itself an abuse of the process of the court and the non-refoulement protection arrangement. To allow the challenge which has no prospect of success to proceed would encourage other claimants to indulge in such abuse. It would cause unnecessary waste of judicial and public resources and delay the genuine non-refoulement claimants’ access to the court. It would render it difficult for the Director to perform his duty of maintaining immigration control. Above all, it would make it difficult or unduly burdensome for Hong Kong to honour its international obligations under the various conventions to protect people from persecution, torture and other cruel, inhuman or degrading treatment or punishment. Allowing the application to proceed may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

CONCLUSION

10. The Applicant has no valid explanation for the very substantial delay. His intended appeal has no prospect of success. To allow such an un-meritorious challenge to proceed would be prejudicial to the intended respondent and the administration. Accordingly, his application for extension of time to appeal is refused.

( Anthony To )
Deputy High Court Judge

The Applicant is not represented

[1] CAMP 64/2020; [2020] HKCA 844

[2] CACV 63/2015

[3] CACV 78/2018; [2018] HKCA 460

[4] [2018] HKCA 524 at [14(1)]

HCAL 813/2019

[2021] HKCFI 3601

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 813 of 2019

____________________

BETWEEN
	Ashwani Kumar	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 documents and the Applicant being absent from the open court.

Order by Deputy High Court Judge P. Li:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

1. The applicant sneaked into Hong Kong on 3/5/2016. He surrendered to the Immigration Department on 6/5/2016. He filed the non-refoulement claim in this case on 5/7/2016.

BACKGROUND

2. The applicant was born on 3/5/1990 in Panjab, India[1]. He was single and a Hindu. His family lived in India. He received education for 12 years. He was a part-time supervisor for 2 years. He had never been charged or imprisoned in India.

3. Around 2015, he fell in love with a Muslim girl Zoya (“Z”) in college. He got “Z” pregnant. She then had an abortion.

4. He knew Z’s father was a member of Jalandhar Legislative Assembly. Some of the relatives of “Z” associated with local gangsters.

5. On 1/1/2016, he and Z filed a marriage petition in the local court. Z’s brother objected to the marriage as he was a Hindu. In the same evening, Z’s brother broke into his home as he refused to open the door. Z’s brother confronted his father. Her brother threatened the applicant’s father that the applicant would be killed.

6. He immediately fled to Tanda [2] and stayed with his uncle. Z’s brother managed to locate him. The gang assaulted him with hockey sticks. He was later treated in a local medical shop. It took him 12 days to recover. He then moved to his cousin’s place in Tanda and stayed safely there until the end of March 2016. In the meantime, his parents moved to New Delhi. They were not attacked.

7. In late March 2016, he left India using valid passport and visa for Guangzhou by air. He did not encounter any problem. He stayed at Guangzhou for about a month. He attempted to go to Macau in April but unsuccessful. He sneaked into Hong Kong by boat in early May 2016.

8. His friend told him that Z’s brother still asked about him. He did not think the police would assist given that Z’s father was a member of the local legislative assembly. He could not afford a bribe. He feared that he might be harmed or killed by Z’s family if refouled.

The Decision of the Director

9. The Director found that there was no real risk of harm for the following reasons:

(a)   There was only one occasion of assault. He only needed treatment at a medical shop and recovered in 12 days. The injuries did not amount to “a minimum level of severity”.
(b)   There was no evidence that Z’s family had continued to attack him. They only wanted to scare him. He had been in Hong Kong for more than two years and did not contact Z. There was no reason for Z’s family to insist on pursuing the matter.
(c)   This was a personal dispute. There was no reason for Z’s father to mobilize official resources to deal with it. There was no evidence that Z’s father had used his status to deal with this dispute. There was no evidence that the State was involved. There was no breakdown in law and order in India resulting in inability to protect citizens.
(d)   He was able to stay safely with his cousin in Tanda for 2 months before leaving India. The influence of Z’s father was not far-reaching.

10. The Director accepted that there were problems of corruption, human right violations, abuse of power and ineffective police, however, there were on-going reforms in India. There was effort by individuals and NGO to bring police officers to justice and enhance accountability. Special channels were established to tackle corruption (e.g. Central Vigilance Commission). One could complain to the Superintendent if a proper investigation was not carried out. One could file a report to the NHRC.[3] The Director was satisfied that there was reasonable State protection.

11. The Director pointed out that the Indian law allowed internal relocation. India was a large country with a huge population. There were reasonable options for relocation, e.g. Delhi and Mumbai. These cities could provide opportunities for the applicant to earn a living. It was not unduly harsh for the applicant to relocate given his background.

12. The Director dismissed his non-refoulement claim on all grounds on 12/4/2018.

The Decision of TCAB

13. The adjudicator held an oral hearing on 24/1/2019. The applicant was assisted by an interpreter. The applicant gave evidence and answered questions.

14. The adjudicator concluded that the applicant was not credible. The main reasons were as the following:

(a)   The applicant was unable to recall when Z got pregnant.
(b)   The applicant said Z’s family learned about the relationship around October 2015. It was not reasonable that they only took action and stopped the marriage petition in January 2016.
(c)   In his NCF, the applicant said Z’s brother went to his home and he dared not open the door. However, he told the adjudicator that he was outside with a friend when Z’s brother came. It was inexplicable why Z’s brother only threatened him through his father.
(d)   He was beaten up by several men for 5 minutes. He only needed treatment from a local medical shop. He did not suffer serious injuries.
(e)   The applicant asserted that the police would not interfere because of the status of Z’s father. It was a pure speculation. In any event, her father was not a government official.
(f)    The applicant was able to stay safely with his cousin for 2 months in Tanda before leaving India. Z’s brother was not that influential. The applicant did not even attempt to move further away from his home village.
(g)   The applicant stayed in China for a month. He attempted to enter Macau first instead of coming to Hong Kong. It was inconsistent with his fear of imminent risk of harm.

15. The adjudicator opined that there was reasonable State protection. The law allowed relocation. There was reasonable relocation option to Delhi, Mumbai and Kolkata. The influence of Z’s family was localized. The applicant could relocate without undue hardship given his age and education.

16. The adjudicator dismissed his appeal on 8/3/2019. The applicant failed on all applicable grounds.

Judicial Review

17. The applicant applied for leave to apply for judicial review on 25/3/2019. In his supporting affirmation, he pointed out several points which are discussed below:

a.  The applicant complained that he was not represented during the TCAB hearing. He had no legal assistance in processing the appeal to the TCAB and the leave application.
i. It is well settled that a claimant under the USM does not have an absolute right to free legal representation at all stages of the proceedings.[4]
ii. The applicant had legal assistance from DLS in preparing his NCF. There was no substantial change of his case before the TCAB. Given the circumstances, I do not find any irregularity even though he was not represented before the TCAB.
b.  The applicant pointed out that there was no language assistance provided. He had difficulty understanding the decisions. The hearing bundle was in English. He did not have any assistance.
i. The decision of the Director was explained to him by the DLS. I am sure the applicant understood the reasoning.
ii. As to the NCF and the record of interview before the Director, the applicant was assisted by the DLS at that stage. All these documents were translated to him at that time. He should be able to understand the content.
iii. In my view, the applicant should seek assistance from others according to his resources. There is no duty on the part of the Director to supply translated documents. In fact, there was a Hindi/English interpreter in the TCAB hearing. Had there been any difficulties, he should have sought assistance from the adjudicator during the hearing.
iv. I notice that both the Form 86 and the affirmation were typewritten in English. They are very concise. This indicate that the applicant was able to find language assistance.
v. The applicant was able to answer the questions put by the adjudicator. This showed that he understood the proceedings.
c.  He complained that the decision of the TCAB was never translated to him. He could not understand fully the reasoning of the adjudicator. The applicant should seek language assistance according to his resources. The concise affirmation in English indicated that he was able to find help.
d.  The applicant complained that reforms might take years to be effective and doubted the present situation in India. He asserted that the reforms were diplomatic strategies to show off to other countries instead of actual improvement.
i. The adjudicator found that the applicant was not credible. This led to rejection of his evidence and the basis of his claim. The COI were of secondary importance in the circumstances.
ii. The COI were compiled by the United States Department of State, the Central Intelligence Agency US, the World Population Review and the UK Home office. They are State agencies collecting information through diplomatic channels. The information provided should be highly relevant and accurate for assessing the development in India. The news reports were from reliable news agencies. They should be reliable.
iii. The applicant was well aware of the material relied on by the Director who listed out all the relevant websites in the decision of 12/4/2018. Had there been any other information, the applicant should have sufficient time to raise it during the hearing with the TCAB in January 2019.
iv. I disagree that the adjudicator and the Director had not considered the COI thoroughly.

18. The applicant was absent at the hearing scheduled on 20/9/2021 before this court.

19. At this stage, the decision of the TCAB had superseded that of the Director. In judicial review, this court is to decide whether there is any error in law and procedure. Whether the decision of the TCAB is irrational. The finding of facts is the duty of the TCAB.

20. In my judgment, there is no error of law or procedure. The decision of the TCAB is reasonable. The evidence of the applicant is not convincing. The adjudicator is right to reject his story.

CONCLUSION

21. The application is not reasonably arguable. There is no reasonable prospect of success. I refuse leave for judicial review.

Dated the 2^nd day of December 2021

(Mike 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

Notesfor the Applicant: If leave has been granted, the Applicant or the Applicant’s 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 2 December 2021 Ashwani Kumar 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 2 December 2021 Torture Claims Appeal Board / Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 11336/18/4/346/IN2214 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1054/18 (formerly RBCZ/13174/16) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

[1] Adampur Jalandhar.

[2] It was about 12 km from his home.

[3] National Human Rights Commission.

[4] See ZafarMuazam[2018] HKCA 176, at paragraph 22.

ASHWANI KUMAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE [Decision on Leave Application]

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	consideration of the documents only; or
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