Harpreet Singh v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Offic

HCAL 1608/2018

[2020] HKCFI 890

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1608 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 Torture Claims Appeal Board (“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 did not attend the hearing on 2 August 2019. The Court will therefore proceed to consider the applicant’s application on the papers.

2.I have identified the following defects in Form 86 for his application:

a.  he had not written any name as the respondent; and

b.  he had left blank the column for the decision in respect of which relief is sought.

3.Pursuant to the powers under O.53, r.3(6) and O.20, r.8, RHC, I shall rectify the above irregularities by:

a.  the Board be added as the respondent (O.20, r.8); and

b.  adding the relief of leave to apply for judicial review of the Board’s Decisions dated 22 April 2015 and 26 July 2018 respectively (O.53, r.3(6)).

The applicant

4.The applicant is an Indian national. He came to Hong Kong on 23 September 2014 and he was refused permission to land whereupon he lodged non-refoulement claim with the Immigration Department. 

5.In support of his claim, he said that if refouled, he would be harmed by an unknown family who did not want the applicant to live next to him. His father had bought a piece of land adjacent to this family and intended to build a house on it. The father also intended to transfer the house to the applicant. However, this neighbour created nuisances and denied him and his father the quiet enjoyment of the property. He was, on a number of occasions, beaten up by his neighbour and their people with sticks. He suffered injuries. He moved to live in his friend’s place and he fled for Hong Kong finally.

The Director’s Decisions

6.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”).

7.By Notice of Decision dated 28 November 2014 (“the Director’s Decision”) and Notice of Further Decision dated 27 January 2017 (“the Director’s Further Decision”), collectively called “the Director’s Decisions”, the Director refused his claim for the reason that his claim was not substantiated.

The Board’s Decisions

8.The applicant appealed to the Board against the Director’s Decision. He was absent on 24 February 2015 and attended another hearing on 19 March 2015. The Board by it decision dated 22 April 2015 (“the Board’s Decision”) refused his appeal. The applicant did not apply for leave to apply for judicial review of the Board’s Decision.

9.The applicant appealed against the Director’s Further Decision. The Board decided not to hold a hearing on this occasion. By a further Decision dated 26 July 2018 (“the Board’s Further Decision”), the Board refused his appeal against the Director’s Further Decision. The applicant now seeks to apply for leave for judicial review of the Board’s Further Decision.

10.The Board considered the evidence and in respect of the Board’s Decision, it found:

“24. As the Appellant’s claim had been shown to be totally unreliable, in all the circumstances; of the case, it should not be necessary for me to go further and analyze the different grounds under the Unified Screening Mechanism….”

11.See paragraphs 10 to 23 for details and analysis. The Board found that there was no evidence that the applicant would be subject to BOR 2 risk.

Application for leave to apply for judicial review

12.The applicant filed Form 86 for leave to apply for judicial review of the Board’s Further Decision. However, the facts of the Board’s Further Decision are the same facts in the Board’s Decision. I decide to take into consideration of the Board’s Decision as well.

13.In his affirmation, he said that his problem in his country had not been resolved and his life would be endangered if he returned.

DISCUSSION

14.I note that the Board had decided not to hold a hearing for assessment of BOR 2 risk. See paragraph 6 of the Board’s Further Decision. The Board was entitled to do so in accordance with section 15, Schedule A of the Ordinance. The applicant has not taken up this issue in his affirmation.

15.The Board had referred to its Further Decision that on the facts of the case, the Board placed no credibility on his evidence. Shone of factual basis in support of his claim, the applicant failed to establish a prima facie case for his claim.

16.The Board found that the applicant had not set out his claim on BOR 2 risk and it dismissed his appeal.

17.There is nothing to show that the Board had committed any error in its application of the law to her case or in coming to its conclusions on the facts of the case.

18.In the circumstances, the applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.

CONCLUSION

19.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 22^nd day of May 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