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

HCAL1567/2018

[2019] HKCFI 612

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1567 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 family members and their men of his girlfriend, Manisha, because of their love relationship.

4.In his statements given to the Director and the Board, he said that Manisha and he were of different castes. They were not allowed to get married or Manisha’s family would kill him. However, they had fallen in love. Manisha’s brother had warned him to cease the relationship. Seeing that he did not do so, he and his friends had attacked him a number of times in 2006. They threatened to kill him. He and Manisha moved to Indore where they rented a flat and lived together for four or five years. In 2011, Manisha was kidnapped. He reported this to the police. He was aware that Manisha’s family was looking for him. He moved around in different places to avoid being found. In 2013, when he was in Sonepat, he learned from his father that Manisha’s family had located him and advised him to leave India. He took the advice and moved 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 10 January 2018 (“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 17 May 2018.

8.The Adjudicator tested his evidence which he had given to the Immigration officer.

9.Having considered his evidence, the Adjudicator found:

“64. … …the Board does not accept that Manisha was kidnapped in Delhi or killed by her family due to her relationship with the Appellant……. In light of its findings regarding the Appellant’s credibility, the Board also does not accept that the Appellant was attacked by Harish or by Harish’s friends in Sonepat prior to his travel to Hong Kong.

66. Considering all the evidence before it, and in light of the findings above, the Board considers there is not a real risk the Appellant would face any of the proscribed forms of harm from any of Manisha’s family members, including Harish, or the police should he return to India.”

Application for leave for judicial review

10.By Form 86 dated 7 August 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 7 August 2018, the applicant relied upon the grounds below:

(1)  there was no language assistance to him for the appeal;

(2)  the Hearing Bundle was not read to him and there was no translation for it;

(3)  the Director cherry picked the COI to rebut his claim;

(4)  the Board’s Decision was not read or translated to him; and

(5)  he did not understand the contents of the Board’s Decision.

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.

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.Grounds (1), (2), (4) and (5) fail as the applicant confirmed that he was able to understand English. He read the Board’s Decision himself and he understood it.

18.Ground (3) does not assist him. The Director and the Adjudicator have their discretion as to what weight should be given to the evidence. There is simply no evidence that they had any pre-conceived conclusion.

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

CONCLUSION

20.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