Patel Manojkumar Hasmukhbhai v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

Case No.HCAL 423/2017[2018] HKCFI 652

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

HCAL423/2017

[2018] HKCFI 652

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 423 of 2017

BETWEEN

	Patel Manojkumar Hasmukhbhai	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 oral submissions by the Applicant 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 14 November 2009 and was permitted to remain for 14 days. The applicant overstayed and was arrested by the police on 29 November 2009 for overstaying. He then lodged a torture claim on 1 December 2009. His claim was then taken to be a non-refoulement protection claim after the commencement of the Unified Screening Mechanism on 3 March 2014. His claim was rejected by the Director of Immigration (“the Director”) on 8 January 2015 and 1 November 2016. The applicant lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 6 July 2017. The applicant then filed a notice of application for leave to apply for judicial review on 18 July 2017.

2.His application was set down for an oral hearing on 14 December 2017 because there were no grounds for his application in his affirmation so the applicant was given an opportunity in open court to make oral submissions. The basis of his claim was that if he were to return to India he would be harmed or even killed by his uncle and cousin because of a family land dispute. Both the Director and the adjudicator of the TCAB set out the applicants claim in detail in their decisions therefore, I will only summarise it here.

3.The applicant was born in Gujarat and completed a university education. In 1985 the applicant’s grandfather divided his land between the applicant’s father and his uncle; both receiving 39 acres each. In 2005, the applicant asked his father for 7 acres to farm. In 2006 his politically well-connected uncle asked the applicant and his father to sell those 7 acres to a buyer but they refused which made him angry. The applicant was beaten up by his uncle and a group of men. In 2009, the land dispute flared up again and the uncle threatened the applicant and his father. It led to several violent incidents, when in November his cousins arm was broken and his out-raged uncle then issued a death threat. After that death threat the applicant left and hid in a friend’s home. It was suggested he seek protection in Hong Kong.

4.The adjudicator, as did the Director, analysed the applicant’s claim under all applicable grounds;

(a)   risk of torture as defined in part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, (“torture risk”);

(b)   risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of Hong Kong Bill of Rights Ordinance Cap 383 and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”);

(c)   risk of persecution by reference to the non-refoulement principal under Articles 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“persecution risk”); and

(d)   risk of a violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 6 ICCPR (“BOR 2 risk”).

5.The adjudicator treated the hearing as a rehearing and conducted an oral hearing. He set out the applicant’s claim and evidence in great detail as well as the law and key legal principles applicable to the four grounds.

6.The adjudicator did not believe the applicant who had applied for his passport in December 2007 and his China Visa in October 2009, had left India in November 2009 because he feared for his life and feared his uncle would harm or kill him. He gave his reasons why he came to this conclusion. He then made other findings in relation to the land which led him to assess the future risk of harm to be low if the applicant was refouled. The adjudicator noted the applicant had not been harmed by his uncle seriously; I assume he meant he did not reach the minimum level of severity required to be defined as torture.

7.The adjudicator does not address each ground but concludes that the applicant has not established that he would be at risk of the harm, be it physically or mentally, that he claims to fear. He finds the applicant’s claim fails all applicable grounds. As I have said above, the adjudicator sets out the law correctly but does not clearly apply his findings to each ground separately but that does not necessarily mean there has been an error of law or a failure to adhere to a high standard of fairness or procedural unfairness on his part.

Leave to apply for judicial review

8.The applicant submits no grounds in his affirmation except to say he was not satisfied with the decisions of the Director or the adjudicator in that his life will be in danger if he returns to India because his uncle is powerful and influential. He says his uncle will easily hunt him down and kill him. One of the points made by the adjudicator is that if his uncle really intended to kill him he had plenty of opportunity to do it before the applicant left India yet did not.

9.During the oral hearing the applicant asked for more time to remain in Hong Kong whilst the land was being sold to his uncle. He then confirmed in answer to my question and admitted that he made this application for leave to apply for judicial review to buy time to remain in Hong Kong. This is an abuse of the process as well as a waste of judicial time and resources. When I consider this and the fact he has submitted no grounds to support his application, I do not hesitate to refuse leave to apply for judicial review.

Dated 28^th day of March 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);	Sent to the Applicant on 28/3/2018 Patel Manojkumar Hasmukhbhai 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 28/3/2018 Torture Claims Appeal Board / Non-Refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 762/15/1/114/IN231 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 900/14 (formerly RBCZ/3167/09) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)
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)).

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