Gunasekaran Saravanan v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1598/2018

[2020] HKCFI 968

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1598 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 8 August 2019.

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

a.     he had left blank the column for the respondent; and

b.     he had not set out the Board’s decision for his relief.

3.Pursuant to the powers under O.53, r.3(6) and O.20, r.8, RHC, I granted leave for him to amend Form 86 by:

a.     adding the Board as the respondent (O.20, r.8);

b.     adding the relief of leave to apply for judicial review of the Board’s Decision dated 3 August 2018 (O.53, r.3(6)).

The applicant

4.The applicant is an Indian national. He came to Hong Kong on 16 December 2011. On 8 February 2012, he was arrested by police and was then referred to the Immigration Department for investigation. On 19 February 2012, he lodged a non-refoulement claim.

5.In support of his claim, he said that if refouled, he would be killed by Pazhani Samy, Balasubramanian and Selvam and their people (“the other people”) due to a land dispute. The dispute arose because his father had bought a piece of land near the other people’s land. His family belonged to a lower caste whereas the other people belonged to a higher caste. He went to work in Dubai himself, leaving his father in India. His father was threatened by other people to leave and he left India and hid himself in Sri Lanka towards the end of 2010. His colleagues in Dubai learned about this and looked down upon him. They even beat him up. He returned to India. There had been four occasions where he was beaten up by the other people with bare hands and sticks. He had suffered injury on the fourth occasion and was hospitalized. He took his friend’s advice and came to Hong Kong.

The Director’s Decisions

6.The Director first 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.     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

c.     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 30 July 2015, the Director refused his claim for the reason that his claim was not substantiated.

8.By letter dated 12 May 2017, the Director asked the applicant to supply further information in relation to BOR 2 risk – right to life, which would be assessed separately as well. The applicant submitted further documents for the Director’s consideration.

9.By Notice of Further Decision dated 7 June 2017, the Director rejected his BOR 2 risk claim as well. The Director’s Decision and Further Decision are collectively called (“the Director’s Decisions”).

The Board’s Decision

10.The applicant appealed to the Board against the Director’s Decisions and he attended a hearing before the Adjudicator on 16 June 2017.

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

12.The Board considered the applicant’s evidence and, for the reasons set out in the Board’s Decision came to the conclusion below.

a.     The applicant’s credibility was questionable [61].

b.     The applicant’s evidence on the facts was vague, lacking in detail and hearsay, apart from being far-fetched and implausible [62-66].

c.     On the totality of the evidence, the Board was not persuaded that the applicant was ever targeted, threatened or assaulted by the other people [76].

d.     On the totality of the evidence, the Board was not persuaded that, even to the low standard applicable, there was a real risk that the applicant would suffer ill‑treatment of any sort because of the reasons that he had stated [77].

Application for leave to apply for judicial review

13.He filed Form 86 dated 10 August 2018 for leave to apply for judicial review of the Board’s Decision.

14.In his affidavit, he said that it would still be dangerous for him to return to India.

DISCUSSION

15.The applicant appeared before me. He confirmed that he was able to speak freely at the interview with the immigration officer and before the Adjudicator at the appeal hearing.

16.I had put the Board’s comments to him and asked him if he had any comments. He said that he had no comments.

17.The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 held that the findings of fact by the Adjudicator was final [42], subject to judicial review. There is no evidence that the Board had committed any error in coming to its decision.

18.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 judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 29^th 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