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

HCAL 2943/2018

[2020] HKCFI 248

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2943 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.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”) and the Director of Immigration (“the Director”).

The applicant

2.The applicant is an Indian national. He arrived in Hong Kong on 11 April 2016 as a visitor and was allowed to stay until 25 April 2016. He overstayed. He surrendered himself to the Immigration Department on 27 April 2016. On 3 June 2016, he lodged a non-refoulement claim.

3.His reason for his application is that if refouled, he would be killed by his enemies Muniyasamy or his family members for causing suicide or death of his cousin Diviya if he returned to India.

4.The applicant claimed that in 2007 he had met a university classmate (D), who was of a rich family. Her father (M) objected to their relationship. He went to the applicant’s home with some friends. They assaulted him. They threatened to kill him if he saw D again. He was injured in his arm and leg. The applicant’s brother went to M’s home and attacked M. M reported to police. He and his brother were summoned to the police station where he was forced to sign a paper agreeing not to see D again. His parent did not support him to continue with university study. He found a job in K town. His uncle once told him that D had committed suicide because her family’s objection to their relationship. M blamed him for her suicide and threatened to kill him. He had travelled to other countries in order to avoid M. He returned and lived in his aunt’s place. However, he met M on the street. M attempted to kill him. The applicant’s brother assaulted M with a wooden pole and fractured his skull. M reported the case to police. His brother surrendered himself. He fled and left India.

The Director’s Decision

5.The Director considered his application only 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 27 September 2017 (“the Director’s Decision”), the Director rejected his claim for the reason that his claim was unsubstantiated.

The Board’s Decision

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

8.By Decision dated 23 November 2018 (“the Board’s Decision”), the Board refused his appeal and confirmed the Director’s Decision.

9.The Board considered the applicant’s evidence and found that his evidence was inconsistent and implausible. In the Board’s Decision, it set out all the reasons and investigations [26-39]. It did not accept all the facts in support of the applicant’s claim [40]. It did not consider he faced a real risk of proscribed harm from D’s family if he returned to India [41].

Application for leave to apply for judicial review

10.In his Form 86 dated 21 December 2018 under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave to apply for judicial review of the Director’s Decision and the Board’s Decision respectively.

11.In his affirmation in support of his application, the applicant relied upon the grounds against the Director’s Decisions and the grounds against the Board. As explained below, his application for leave to apply for judicial review should be against the Board only, I shall focus his grounds against the Board’s Decision.

1. There was no legal assistance or language assistance for his appeal or for him to understand the Board’s Decision where for other cases, the applicants were assisted with translation, unfair treatment to him.

2. The Immigration Department adopted a very uninformed approach for rejecting all non-refoulement claims.

3. The Board did not address the issues against the Director. It only made the assessment on more or less a templet basis.

4. High standard of fairness was not attained.

DISCUSSION

The Director’s Decision

12.In the decision 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 held that the applicant could not apply for judicial review of the Director’s Decision without exceptional circumstances because he had appealed to the Board, which was established by statute with wider power of investigation into the facts of the matter. The Board had already heard the appeal and made its Decision.

13.The applicant has not set out any exceptional circumstances.

14.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.”

15.The applicant’s application for leave to apply for judicial review of the Director’s Decision therefore fails in limine. I dismiss his application.

The Board’s Decision

16.The applicant appeared before me. He confirmed that he had been able to speak freely and tell his stories fully to the Immigration officer and the Adjudicator. His lawyer had explained the Director’s Decision to him. His friend had assisted him with the hearing bundle and the Board’s Decision. In fact, according to his statement to the Director, he was a university student himself.

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

18.The Court of Appeal held in Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14

“13. Evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision makers….

14. Determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.”

19.The Court of Appeal in Re Sharma Poonam [2019] HKCA 804, 19 July 2019 held:

“16. It has been decided in Hong Kong that the high standard of fairness required by law would not entail an interpretation service being made available to an applicant all the time as she may desire: see Re Gurnishan Singh [2018] HKCA 704; Re Gurung Sagar [2019] HKCA 658.”

20.Grounds (1) and (4) fail.

21.Grounds (2) and (3) are his opinions without any evidence in support. They fail too.

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

CONCLUSION

23.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