Kawaljit Singh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL584/2017

[2018] HKCFI 989

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 584 of 2017

BETWEEN

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 first arrived in Hong Kong on 1 August 2006 and then travelled in and out of Hong Kong for a few weeks.  He then overstayed illegally from 19 September 2006 before he surrendered himself to the Immigration Department on 1 March 2007.  40 months after he arrived in Hong Kong and on 19 May 2008 he lodged a torture claim which later became a non-refoulement protection claim covering other applicable grounds.  That claim was rejected by the Director of Immigration (“the Director”) on 14 April 2015.  The applicant appealed that decision to the Torture Claims Appeal Board (“TCAB”) and the appeal was dealt with and rejected on 4 November 2016.

2.The applicant’s BOR 2 claim was dealt with after that appeal.  On 19 January 2017 the Director wrote to the applicant and invited him to submit any further information within 14 days.  The applicant had no further information to submit and on 15 February 2017 the Director rejected his BOR 2 risk claim by way of a Notice of a Further Decision.  The applicant lodged an appeal/petition on 20 March 2017 against that decision and although it was out of time, the TCAB allowed an extension of time, determined the appeal/petition without a hearing and dismissed it on 25 August 2017.

3.The applicant filed a notice of application for leave to apply for judicial review on 5 September 2017 and requested an oral hearing which was set down on 4 January 2018.  The application was only limited to the TCAB decision dated 25 August 2017.

TCAB decision without a hearing

4.The adjudicator of the TCAB set out a chronology of the applicant’s claim in his decision.  He noted that the applicant’s evidence and facts were summarised in his previous decision of 4 November 2016 and did not need to be repeated.

5.The adjudicator noted that the applicant had no further information to submit that related to a BOR 2 risk, even in the notice of appeal/petition he had provided nothing in fact or in law which was legally different from or added significantly to what was already in his previous case.  This meant that there were no new facts to consider, no issue of law raised or any matter of credibility to resolve.  The evidence had not changed nor had the applicant’s case evolved.

6.The adjudicator considered Article 2 and its subsections.  He considered the fact that the Court of Appeal has said in the past that in situations like this when the applicant’s case is abundantly clear to the adjudicator and has not changed or evolved then, there is no need or justification to organise yet another oral hearing to re-canvass exactly the same facts previously dealt with before.  The adjudicator considered the applicant’s evidence, claim, submissions in his notice of appeal and his previous findings as well as Article 2 and found the applicant did not succeed in establishing a case under BOR 2; his BOR 2 risk claim failed.  He confirmed the decision of the Director.

Leave to apply for judicial review

7.I must consider this application with rigourous examination and anxious scrutiny.  The supporting affirmation contains only two grounds and the first was that the applicant was not given an opportunity to be heard in an oral hearing nor was he invited to submit written submissions and submit evidence.  The applicant complains that he was not given a chance to at least reply to submissions made by the representatives of the Director.

8.The applicant is assuming that the representatives of the Director made submissions.  Submissions are only submitted by the Director when an oral hearing bundle is prepared when an oral hearing is conducted and arranged by the TCAB.  When the TCAB decides to determine an appeal/petition without a hearing, there will be no submissions submitted by the Director.

9.I have considered whether the decision not to conduct an oral hearing was fair and I am satisfied that the adjudicator’s reasons for considering the appeal/petition on the papers are proper and reasonable.  There is no merit in this first ground.

10.The second ground is that the TCAB has relied on a source of news that is out of date, hearsay and not officially recognised in deciding that the applicant cannot invoke protection under BOR 2.  There are no particulars in this ground and the applicant has simply failed to show and identify what material offends.  There is no merit in this ground.

11.In my judgement, none of the grounds are reasonably arguable so as to satisfy the test in Peter Po Fun Chan v Winnie CW Cheung & anor (2007) 10 HKCFAR 676, para 14-17.  I do not find any ground that shows there was an error of law by the adjudicator.  I see 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.  There is no realistic prospect of success therefore, I refuse leave for judicial review.

Dated 14^th day of May 2018.

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