Vijay Kumar v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 1616/2018

[2020] HKCFI 249

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1616 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant is not legally represented and he did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court (“RHC”), by letter, invited the applicant to appear before it in order to explain the above to them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant attended the hearing on 25 July 2019.

2.I have found that the applicant named the Director of Immigration (“the Director”) as the respondent. The proper party should be Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”). See Ali Haider CACV8/2018, [2018] HKCA 222 at §14.

3.Pursuant to the powers under O.53, r.3(6), O.20, r.8 and O.53, r.4 of the RHC, I have rectified the above irregularity by deleting the Director as respondent and the Board be added as the respondent (O.20, r.8).

The applicant

4.The applicant is an Indian national. He came to Hong Kong on 29 November 2014 and was allowed to stay until 13 December 2014. He overstayed and was arrested by police on 5 January 2015. He lodged his non-refoulement claim on 7 January 2015.

5.He said that if refouled, he would be tortured or killed by his paternal uncle, Mr. Ram Dayal because of a land dispute.

6.His father and paternal uncle inherited a piece of land each from their father, the applicant’s grandfather. His paternal uncle cultivated his land and also his father’s land as his father was a driver. In 2013, his father wanted to claim back his own piece of land for cultivation. His paternal uncle refused to return it to him, threatening that he was well connected with the Akali Dal party, the ruling party at the locality. When they wanted to take back the land, his paternal uncle called other people to get them off the land. His paternal uncle threatened that if they returned, he would kill them. His paternal uncle and his father had quarreled over this piece of land. His uncle told his father to pass the title of the land to him. His father refused.  One night in August 2014, when the applicant was on his way home, he met his uncle together with five men. They hit him with wooden sticks. He suffered injuries, with open wound on the back of his head, his right elbow was fractured and his ears were bleeding. He was sent to the hospital by some passers-by. His father went to the police station to report the case. They told him that they would investigate into the matter, but later told them that they were lying and trying to stir up troubles.

7.His uncle told his father that he knew that they reported to the police. He threatened his father to pass the land to him. His father passed the land to the applicant and registered the deed in the Land Registry. He had moved to live in his friend’s home in order to avoid his uncle. He was advised to leave India. He took the advice and came to Hong Kong.

The Director’s Decision

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

a. torture risk under Part VIIC of the Immigration Ordinance, Cap 115, (“the Ordinance”);

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”).

9.By Notice of Decision dated 5 September 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.

The Board’s Decision

10.The applicant appealed to the Board against the Director’s Decision and he attended a hearing before the Adjudicator on 10 May 2018.

11.By Decision dated 9 August 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.

12.The Board considered the applicant’s evidence and only accepted that he is a national of India, but had not accepted any of the broader claims. It set out its reasons in the Board’s Decision [16-50], in particular:

a. the applicant had given prior inconsistent statements [44];

b. the applicant had given prior inconsistent statements in relation to contact with his friends and his uncle’s change of connection with political parties [45]; and

c. his evidence as to his uncle’s involvement with the political parties was broad, fanciful and unbelievable [46].

Application for leave to apply for judicial review

13.He filed Form 86 for leave to apply for judicial review of the Board’s Decision.

14.In his affirmation, the applicant said that the Board’s Decision was unfair and unreasonable.

DISCUSSION

15.The applicant appeared before me and he confirmed that he was able to speak freely and tell his stories fully before the Immigration officer and the Board.

16.I put those findings to him and asked him for his comments. He said that he had no comments.

17.It is clear that the Board rejected the main facts in support of his claim.

18.The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 held that the findings of fact by the Adjudicator was final [42].

19.The applicant fails to show that he has any reasonable prospect 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 to apply for the intended judicial review. Accordingly, I dismiss his application.

Dated the 23^rd day of January 2020

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