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

HCAL1110/2018

[2019] HKCFI 444

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1110 of 2018

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 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.This is the applicant’s application for leave for judicial review against the decision of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) with the Director of Immigration as the interested party (“the Director”).

The applicant

2.The applicant is an Indian national. He came to Hong Kong on 7 January 2015 and was allowed to stay until 21 January 2015. He overstayed without permission of the Director. He surrendered to the Immigration Department and raised a non-refoulement claim on 9 November 2017.

3.He claimed that if he was refouled to India, he would be harmed or killed by members of the Congress Party (“CP”) because he refused to cease supporting Shiromani Akali Dal Party (“SAD”).

4.In his statements given to the Director and the Board, he said that members of CP had been chasing him. In 2012 while he as on a motorbike, he was stopped by 5-7 men with baseball bats and swords. They were the supporter of CP. They attacked him until he was unconscious. He found himself in the Government Hospital. He had moved to other places to avoid them. But they were able to locate him. Finally, he decided to come to Hong Kong.

The Director’s Decision

5.The Director considered his application in relation to the following risks:

a.  risk of torture under Part VIIC 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”).

6.By Notice of Decision dated 31 January 2018 (“the Director’s Decision”), the Director refused his application for the reason that his non-refoulement claim was not substantiated.

The Board

7.The applicant appealed to the Board. He attended a hearing before the Adjudicator on 7 May 2018.

8.Having considered his evidence, the Board by Decision dated 14 May 2018 (“the Board’s Decision”), refused his appeal and confirmed the Director’s Decision.

9.The Adjudicator found that the applicant had exaggerated his case and that he did not really come for non-refoulement protection, taking various situations into consideration and in particular, he only raised his claim for non-refoulement three years after his arrival in Hong Kong. [27]

Application for leave for judicial review

10.By Form 86 dated 13 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 Board’s Decision.

11.In his affirmation in support of his application dated 13 June 2018, the applicant set out the reasons in support of his application below:

(1)  the Hearing Bundle was sent to him shortly before the appeal hearing and there was no translation for the English contents;

(2)  he was confused at the appeal hearing; and

(3)  the Board had relied upon the source of news which is not officially recognized or it is just hearsay.

DISCUSSION

The Board’s Decision

12.The applicant had appeared before me. He confirmed that before the appeal hearing, he had an interpreter who had explained the Hearing Bundle to him. He had no problem at the appeal hearing. He had no complaint against the Immigration officer or the Adjudicator of the Board. He considered that he had had a fair hearing at the appeal.

13.Grounds (1) and (2) therefore fail.

14.As to ground (3), the Director and the Adjudicator were entitled to consider such information or evidence. They had also considered the evidence adduced by the applicant. The applicant is unable to identify the problem with such information himself. This ground fails.

15.I find that the applicant is unable to show that he has a reasonable chance of success in his proposed judicial review.

CONCLUSION

16.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 27^th day of February 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

Form CALL-1