Case Document

100%Judiciary

HCAL1767/2018

[2019] HKCFI 2220

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1767 of 2018

BETWEEN

	Md Akbar	Applicant
	and
	Torture Claims Appeal Board/Non-refoulement Claims Petition Office	Putative Respondent
	and
	The Director of Immigration	Putative Interested Party

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 decision of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) with the Director of Immigration (“the Director”) as interested party.

The applicant

2.The applicant is an Indian national. He arrived in Hong Kong on 21 April 2016 on his Indian passport. He was permitted to stay as a visitor until 5 May 2016. He surrendered to the Immigration Department on 6 May 2016. He lodged his non-refoulement claim on 21 June 2016.

3.His reason for his application is that he would be ill-treated by his creditor, Mr Bablu.

4.In his statements given to the Director and the Board, he claimed that he inherited his father’s business of selling garments, mobiles and accessories after his father passed away in 2014. His father had borrowed a loan of around 4 million Indian rupees from Bablu. In December 2015, police and Customs Officers came to his shop and took away 2.5 million Indian rupees’ goods, which they confiscated as faked products. He was unable to pay Bablu. Bablu pressed him for repayment. As a result, he had to sell the business and his house as well. But the proceeds were unable to cover the debt to Bablu. In April 2016, Bablu found him in Ajmer together with his brother. Bablu was angry as he was unable to pay and slapped him three times. Bablu threatened to kill him if he did not repay the loan. He had made a report to police. The police did not take action as Bablu was connected with the ruling party. His friends in Hong Kong advised him to go to Hong Kong. He took their advice and came to Hong Kong. He had contacts with his brother back home. He learned that Bablu was still looking for him. He said that he could not relocate himself as Bablu knew where he would be.

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 under RC”).

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

The Board’s Decision

7.The applicant appealed to the Board and a hearing was fixed for him to attend before the Adjudicator on 10 July 2018. However, he did not attend the hearing at the scheduled time. Having waited for more than half an hour, the Adjudicator decided to assess his appeal on the evidence available before him.^{^[1]}

8.By Decision dated 6 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 and found that the applicant’s evidence was incredible and rejected it. The reasons were that his claim was based on unsupported and unreliable evidence [86]. The Adjudicator did not accept the applicant’s evidence that he had been assaulted and threatened by Bablu and the Adjudicator said:

“…Taking his evidence as a whole, I am not persuaded, even to the low standard required, that the Appellant had been assaulted and threatened by Bablu in his home area in Kolkata, or otherwise ill-treated, in India.”

10.The Board also found that internal relocation was a viable option for the applicant [51].

11.In his Form 86 under Order 53, rule 4 of the Rules of the High Court, the applicant applied for leave for judicial review of the Board’s Decision.

12.In his affirmation in support of his application dated 28 August 2018, the applicant relied upon the following grounds:

(1)   he was not provided with legal representation or language assistance for his appeal to the Board or for this application for leave for judicial review;

(2)   the Director had adopted a formula and biased approach in assessing his claim and he applied the Country of Origin Information adverse to his claim; and

(3)   the Board’s Decision was not read to him.

DISCUSSION

The Board’s Decision

13.The applicant appeared before me. He confirmed that he had no complaint against the Immigration officer. The Director’s Decision had been explained to him by his lawyer provided by the Duty Lawyer Scheme.

14.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.

15.The Court of Appeal had held in Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22 that the applicant does not have the absolute right of legal representation at every stage of the proceedings as he had already had legal representation at the screening. The Court of Appeal in Re Sharma Poonam [2019] HKCA 804, 19 July 2019 held that no provision of language assistance is not a valid ground for this application.

16.Ground (1) fails.

17.Ground (2) is his opinion without any evidence in support of it.

18.Ground (3) fails as his friend had explained it to him. That is why he has taken out this application.

19.I had put the Board’s comments in paragraph 9 above to him for his comments. He said that he had no comments.

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 the judicial review. Accordingly, I dismiss his application.

Dated the 19th day of September 2019

	(Thomas WAN)
	for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 19/09/2019 Md Akbar Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 19/09/2019 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 5953/17/1/237/IN1218 The Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2311/16 (formerly RBCZ 12487/16) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)