Rashpaul Chand v. The Director of Immigration and Another
Read the full judgment text of HCAL 1006/2018 on BabelCite. This High Court CFI judgment was delivered on 31 January 2019.
1. This is the applicant’s application for leave for judicial review against the decisions of the Director of Immigration (“ the Director ”) and the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“ the Board ”).
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HCAL1006/2018 [2019] HKCFI 250 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1006 of 2018 BETWEEN
Application for Leave to Apply for Judicial Review Following;
Order by Deputy High Court Judge K.W. Lung:
Observations for the Applicant (Order by Deputy High Court Judge K.W. Lung): THE APPLICATION 1.This is the applicant’s application for leave for judicial review against the decisions of the Director of Immigration (“the Director”) and the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”). The applicant 2.The applicant is an Indian national, who came to Hong Kong on 30 September 2012 as a visitor and was permitted to stay until 14 October 2012. He overstayed without permission of the Director. He was arrested by police and was referred to the Immigration Department for investigation on 27 February 2013. On 3 March 2014, he lodged his non-refoulement claim. 3.He claimed that if he was refouled to India, he would be harmed or even killed by the Pakistani terrorists as his residence was near the borders between India and Pakistan. 4.In his statements given to the Director and the Board, the applicant said that in 2006 he had experienced twice attempted abduction by the Pakistani terrorists and he did escape whereas some of his friends had disappeared. In 2007, his brother was killed by the Pakistani terrorists. In 2012, whilst he was playing cricket, the Pakistani terrorists attacked and he was lucky enough to have escaped. Then, he felt it was dangerous to stay in his home village. He decided to come to Hong Kong. The Director’s Decision 5.The Director had considered the applicant’s application by reference to the risks below:
6.By Notice of Decision dated 21 July 2017, the Director reject the applicant’s application for the reason that the applicant’s claim is not substantiated. See paragraph 5. 7.The applicant appealed to the Board. The Board 8.The applicant appeared before the Adjudicator of the Board on 6 April 2018. 9.By Decision dated 1 June 2018 (“the Board’s Decision”), the Board refused the applicant’s appeal and confirmed the Director’s Decision. 10.The Adjudicator found that the applicant was very evasive and was not willing to tell the whole truth to the Board and even upon the applicant’s evidence, India had taken national and international measures to tackle terrorism [76] and there was state protection for the applicant [79]; internal relocation was available to the applicant [87]; the applicant failed to show that he was subjected to torture if he returned to India [101] and he was not targeted by the state of its agents [102]; his case did not fall within the context of section 37U(1) of the Immigration Ordinance [106] and he would not face a genuine risk of life [116]; and finally, he was not subjected to persecution risk [133]. Application for leave for judicial review 11.By Form 86 dated 4 June 2018, under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave for judicial review of the decisions of the Adjudicator of the Board and the Director respectively. 12.In his affirmation in support of his application filed on 4 June 2018, the applicant relied upon the grounds below:
DISCUSSION The Director’s Decision 13.In my view, the applicant is not entitled to apply for judicial review of the Director’s Decision without exceptional circumstances. In Haider Zeeshan v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office and The Director of Immigration HCAL 806/2018, 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 Decision and this Board has wider power than this Court to make investigations in the matter. The Board had considered his appeal and made its Decision. 14.Since the applicant has not set out any exceptional circumstances, his application for leave simply fails in limine. 15.For the reasons above, I dismiss the applicant’s application for leave for judicial review of the Director’s Decision. The Board’s Decision 16.At the hearing before me, the applicant confirmed that he had no complaint against the Director, the interpreter or his own lawyer. Nor did he have any complaint against the Adjudicator of the Board or the interpreter in the appeal hearing. He was simply not happy with their Decisions. 17.Grounds (1), (4), (5), (6) (7) are his opinion without any evidence to support. These grounds fail. 18.Ground (2) and ground (3) are irrelevant as the Adjudicator had found that there was no state involvement. These grounds fail. 19.As to ground (8), the Adjudicator was entitled to ask for proof from the applicant. If he had any difficulty in getting the evidence, he should have told the Adjudicator for his decision. He had not done so. This ground fails. 20.As to ground (9), this is non-point as the applicant had not said what evidence he wished to adduce. It fails too. 21.In the circumstances, he has failed to show that there is any reasonable prospect of success in his proposed judicial review. CONCLUSION 22.Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave for the judicial review. Accordingly, I dismiss his application. Dated the 31st day of January 2019
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
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