Lal Rohan v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Another

HCAL1177/2018

[2019] HKCFI 609

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1177 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”) and the Director of Immigration (“the Director”).

The applicant

2.The applicant is an Indian national.

3.He claimed that if he was returned to India, he would be harmed or killed by the four Indian police officers or his creditor, Naseem (“N”).

4.In his statements to the Director and the Board, he stated that in India he had borrowed money from N, but was unable to repay the interest. In 2015, N had brought with him 4-5 people to his home to press for repayment. When he was unable to do so, they assaulted him, causing him injuries. Shortly afterwards, they came to his home again and attacked him and abducted him. They forced him to surrender the title deed of his house for security of payment. He did so. But N accused him of producing false title deed and brought in police officers, who took him to the police station where he was detained and assaulted. He was also forced to sign some documents inside the police station. He feared that he might be framed up criminal charge. He decided to come to Hong Kong to avoid them.

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 8 August 2017 (“the Director’s Decision”), the Director rejected 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 on 29 March 2018.

8.By Decision dated 15 June 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.

9.Having considered the evidence, the Adjudicator found:

“35. For reason of the inconsistent, vague and implausible evidence set out above, as well as his non-persuasive explanations, I consider the Appellant is not a credible witness….

36. I have considered the Appellant’s claims individually and cumulatively, as well as the personal circumstances of the Appellant. On the credible evidence before me, I do not consider the Appellant faces a real risk of Proscribed Harm from N and/or the Indian police if the Appellant is refouled to the Risk State.”

Application for leave for judicial review

10.By Form 86 dated 22 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 Director’s Decision and the Board’s Decision.

11.In his affirmation in support of his application dated 22 June 2018, the applicant relied upon the grounds below:

(1)  there was no legal representation for him for the appeal to the Board;

(2)  there was no legal representation for him for this application;

(3)  the Hearing Bundle was only given to him shortly before the appeal hearing and there was no translation for it;

(4)  the balancing exercise of the Adjudicator was not known to him as to why he had picked the Country of Origin Information against his case; and

(5)  the Board’s Decision was not translated to him.

DISCUSSION

The Director’s Decision

12.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.

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

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

The Board’s Decision

15.The applicant appeared before me. He confirmed that he considered that he had had a fair interview with the Immigration officer and a fair hearing before the Adjudicator. Ground (3) fails.

16.The Adjudicator found against him on the facts of the case. The applicant therefore has no factual basis in support of his claim.

17.The Court of Appeal in  Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018, Lam VP [22] had said: “This Court has repeatedly held that neither the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration.  We do not find anything amiss arising from lack of legal representation in the process before the Board.” Grounds (1) and (2) do not sustain.

18.Ground (4) does not assist him as the Director and the Adjudicator have their discretion as to what evidence should be accepted or given weight.

19.Ground (5) is a non-point. The applicant said that he could understand the Board’s Decision himself.

20.The applicant fails to show that he has a reasonable chance of success in his proposed judicial review.

CONCLUSION

21.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 14^th day of March 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