Case Document

100%Judiciary

HCAL736/2018

[2019] HKCFI 108

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 736 of 2018

BETWEEN

	Bala Biswajit	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 K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant (Order by Deputy High Court Judge K.W. Lung):

THE APPLICATION

1.The applicant applies for leave for judicial review of the Decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) with the Director of Immigration (“the Director”) as interested party.

The applicant

2.The applicant is an illegal immigrant from India through China into Hong Kong on 5 December 2012. In October 2013, he was arrested, charged and sentenced to 15 months’ imprisonment less 85 days for taking employment while being under a removal order. He submitted his application for non-refoulement on 3 June 2014.

3.He claimed that he was in fear of being harmed or even killed by the local leaders of the All India Trinamool Congress because of his support and involvement with the Communist Party of India (Marxist). He also claimed that he would be harmed by the money lenders as he was unable to pay his debts.

The Director

4.The Director had considered his application for non-refoulement by reference to the risks below:

a.  risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”).;

c.  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

d.  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 under RC”).

5.By two separate Notices respectively dated 22 July 2016 and 6 July 2017, the Director rejected his application. These Notices are referred to as “the Director’s Decision” and “the Director’s Further Decision” respectively, collectively called “the Director’s Decisions”.

Appeal to the Board

6.On 3 August 2016, the applicant filed an Appeal/Petition to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”). The Adjudicator of the Board conducted a hearing for the applicant on 12 March 2018.

7.The Adjudicator had tested his evidence given to the Immigration officer by way of cross-examination. After careful analysis of the discrepancies between the evidence that he gave to the Immigration officer and the evidence he gave to her, the Adjudicator rejected the applicant’s stories wholesale.

8.By Decision dated 9 April 2018 (“the Board’s Decision”), the Board refused his appeal and confirmed the Director’s Decisions.

Leave for judicial review

9.By Form no. 86 dated 26 April 2018, the applicant applied for leave for judicial review of the Adjudicator’s Decision on the following grounds:

(1)  the Director gave him the Hearing Bundle for his appeal shortly before the appeal hearing and he did not have sufficient time to prepare his case;

(2)  the majority of the documents were in English, inclusive of the Skeleton submission of the Director;

(3)  he did not have sufficient time to prepare for the appeal;

(4)  he was confused at the hearing; and

(5)  the Board had relied upon Country of Origin Information which is outdated, not recognized and hearsay.

DISCUSSION

The Director’s Decisions

10.In my view, the applicant is not entitled to apply for judicial review of the Director’s Decisions without exceptional circumstances. In Haider Zeeshan v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office and The Director of Immigration [2018] HKCFI 2647, HCAL 806/2018, 5 December 2018, I had held that an applicant, without exceptional circumstances, is not entitled to apply for judicial review of the Director’s Decision because the Board has been established by legislation to deal with appeals against the Director’s Decisions and this Board has wider power to make investigations in the matter. See section 18 of Schedule 1A of the Ordinance. The Board had heard the applicant’s appeal and made its Decision.

11.Since the applicant has not set out any exceptional circumstances, his application for leave simply fails in limine.

12.For the reasons above, I dismiss the applicant’s application for leave for judicial review of the Director’s Decisions.

The Board’s Decision

13.The applicant requested a hearing and he had appeared before me. At the hearing, the applicant admitted that he had received the Director’s Decisions refusing his application for non-refoulement on 22 July 2016 and 6 July 2017 respectively. He was able to communicate with the Adjudicator effectively without any problem. All these demonstrate that he was not affected by the Hearing Bundle.

14.The Adjudicator has, in her Decision, set out her reasons for not believing that the applicant was subjected to the fear of torture or being killed. She also did not believe that he was indebted to the money-lender.^{^[1]} In his affirmation, the applicant said that he had answered all the answers honestly. He was unhappy that the Adjudicator did not believe him.

15.The Court of Appeal had held in Ali Haider CACV8/2018, [2018] HKCA 222 at §13: “Evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision makers….”

16.At §14 of the same judgment, the Court of Appeal further said: “Determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.”

17.As to the allegation that the Board had relied on the source of news which was not officially recognized or it is simply hearsay, under section 18 of Schedule 1A(1) of the Ordinance, the Board may consider the same evidence that was before the Immigration officer^{^[2]}. The Director is entitled to consider any relevant materials for the investigation under section 37ZB of the Immigration Ordinance (“the Ordinance”)^{^[3]}. The Director had considered the relevant reports in relation to the Country of Origin Information. They are recognized information for assessment of the risks as raised by the applicant in the legal proceedings. The Court of Final Appeal had also relied upon The (United Nations High Commission for Refugees) Handbook in its Judgment in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187^{^[4]}. The applicant has not set out any reason why he considers that the information is unreliable.

CONSCLUSION

18.Having considered all of the grounds raised by the applicant, I find that the applicant has failed to raise any valid ground to challenge the Adjudicator’s Decision. His application for judicial review has no reasonable prospect of success. As such, I decline to grant leave to the applicant for judicial review. Accordingly, I dismiss his application.

Dated 15^th day of January 2019

(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 15/1/2019
Bala Biswajit

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 15/1/2019

Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 4310/16/8/29/IN979

Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 505/16 & RBCZ 9002448/17 (formerly RBCZ 3000497/14)

Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)

Form CALL-1

[1] See §§66, 67 & 76 respectively

[2] In an appeal under section 37ZR, the Appeal Board has the power to review the merits of the case, and accordingly it may consider —

(a) the same evidence that was before an immigration officer;

[3] After a completed torture claim form is returned by a claimant, an immigration officer —

(a) may require the claimant to provide the immigration officer with any information or documentary evidence related to the claimant’s torture claim that the immigration officer specifies;

[4] See §21

Cites 4 cases

Cases cited in this judgment

Haider Zeeshan v. Torture Claims Appeal Board /Non-refoulement Claims Petition Office and Another

[2018] HKCFI 2647

Court of First Instance