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

HCAL1621/2018

[2019] HKCFI 2042

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1621 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 to apply for judicial review against the respective decisions 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. He was arrested by police for entering Hong Kong illegally. He was transferred to the Immigration Department on 28 December 2015.  He lodged a non-refoulement on 11 January 2016.

3.In his statements given to the Director and the Board, he claimed that he would be harmed or even killed by the family members or relatives of his girlfriend named Simran Sharma (“Simran”) if he was to be returned to India.

4.He said that he came to know her on a social occasion and they fell in love in November 2013. Simran came from a rich family and he was of the poor class. Their relationship was discovered by Simran’s family in May 2015. Her family did not approve of their relationship. Her father had arranged a marriage for her. She disagreed and attempted to elope with the applicant in September 2015. However, her family found them in a restaurant. They took her away and beat him. He escaped. Two months later, he bumped into five or six of Simran’s relatives. They carried weapons and pistols. They beat him with bare hands and kicked him. They threatened to kill him. He sustained injury on his right forearm and elbow. He reported it to the police. They did not take any action. He was scared and travelled to China on 26 November 2015. He came to Hong Kong on 27 December 2015.

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.  risk of persecution by 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”).

6.By Notice of Decision dated 21 November 2017 (“the Director’s Decision”), the Director rejected his claim for the reason that his claim was not substantiated.

The Board

7.The applicant appealed to the Board and he attended a hearing before the Adjudicator on 20 March 2018.

8.By Decision dated 3 August 2018 (“the Board’s Decision”), the Board refused his appeal and confirmed the Director’s Decision.

9.The Board considered the applicant’s case carefully. It finally came to the conclusion that it did not accept that he entered into a love relationship with a woman called Simran Sharma whose family was wealthy and associated with the government. As a result, the Board rejected his story as a whole [57-60]. The Board therefore did not accept that the applicant would face a real risk of harm from Simran’s family member or the police if he returned to India.

Application for leave to apply for judicial review

10.In his Form 86 dated 13 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 respectively.

11.In his affirmation in support of his application dated 13 August 2018, the applicant relied upon the following grounds:

(1)  the determination of the Board was not translated or read to him; and

(2)  there was no language assistance for him and it is procedurally unfair and contrary to high standard of fairness.

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 [2018] HKCFI 2647, HCAL 806/2018, 5 December 2018, I had held that the 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.Also, the Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap. 115 in relation to the powers of the Director and the Board, decided:

“45.  All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”

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.The applicant appeared before me. He confirmed that he had no complaint against either the Immigration officer or the Adjudicator. He said he could read English himself. He understood the Decisions of the Director and the Board. He considered that he had had a fair hearing before the Board.

17.I put the Board’s finding of the facts to him and ask him to comment. He had no comments to make.

18.It is obvious that as the Board rejected all of his evidence on the facts of his case, he has no factual basis in support of his claim.

19.Grounds (1) is not true and (2) is irrelevant. They fail.

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 to apply for judicial review. Accordingly, I dismiss his application.

Dated the 16^th day of August 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