Vipin Kumar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

Case No.HCAL 517/2017[2018] HKCFI 140

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

HCAL517/2017
[2018] HKCFI 140

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 517 of 2017

BETWEEN

	Vipin 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 the documents and the Applicant being absent in open court;

Order by Deputy High Court Judge Woodcock:

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1.The applicant is an Indian national who entered Hong Kong on 1 December 2011 and had his application for non-refoulement claim rejected by the Director of Immigration (“the Director”) on 27 February 2012. He did not lodge an appeal/petition against the decision. He then absconded from reporting on 3 April 2012 but was arrested on 19 March 2013. He then made a second application for international protection on 3 March 2014. The applicant was arrested on 5 February 2015 and was sentenced to 15 months’ imprisonment for working illegally in Hong Kong. The applicant’s second claim was rejected by the Director on 6 June 2016 and 18 May 2017. The applicant then lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) and this was rejected on 8 August 2017.

2.The applicant filed a notice of application for leave to apply for judicial review on 16 August 2017 and requested an oral hearing which was set down for 4 January 2018. A notice of hearing for that date was posted to the applicant on 3 November 2017 at the address supplied by him in his application.

3.The applicant was absent on the hearing date. A call was made to the telephone number supplied by the applicant in his application form and the court interpreter spoke to the applicant who identified himself by name. The applicant admitted he had received the notice of hearing but had forgotten the hearing date. He said he would not be attending court that day or any day and instead wanted to withdraw his application because he was preparing to go home to India. The interpreter informed the court that she did confirm with the caller that he was indeed the applicant.

4.I waited two weeks and received no correspondence from the applicant. I am satisfied the interpreter did speak to the applicant over the phone on the telephone number supplied by him in his application form. I am satisfied that he said he did not intend to pursue his application any further and I assume that is why he failed to attend the hearing date.

5.In any event, I have considered the adjudicator’s decision and note he concluded the applicant was not a witness of truth and found he was not a genuine claimant; he did not establish any of the facts he had asserted in his claim. The adjudicator set out in detail the reasons why he did not believe him. Clearly there were serious and material inconsistencies in the applicant’s oral evidence before the TCAB when comparing it to evidence he presented in his claim. The applicant was given opportunities to explain his inconsistencies but his answers were so incoherent and self-contradictory, they were utterly implausible.

6.The grounds the applicant relied on in his affirmation included being highly prejudiced by a lack of legal representation before the TCAB and the lack of language assistance during his claim process. Ground 3 suggests a failure by the Director to give reasons for rejecting his BOR 2 claim, ground 4 criticises the Director for not arranging a hearing for the BOR 2 claim and not attending his appeal hearing. None of these grounds have any particulars or any merits.

7.I have considered the grounds of this application against the decision of the adjudicator of the TCAB only. There is no room to judicial review the Director’s decision. The applicant has already utilised the channel of appealing the Director’s decision to the TCAB. The TCAB treated the appeal/petition as a de novo hearing or rehearing.

8.None of the grounds show any errors of law by the adjudicator. There was no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable. None of the grounds were reasonably arguable and there is no realistic prospect of success. I refuse leave for judicial review.

Dated 31^st day of January 2018.

	(Alan Ngan)
	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 31/1/2018 Vipin 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 31/1/2018 Torture Claims Appeal Board / Non-Refoulement Claims Petition Office Putative Respondent’s ref. no.: USM3931/16/6/121/IN904 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 55/16 & RBCZ/9001679/17 (formerly RBCZ 3000940/14) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)

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