Muthuchami Ajai Kumargosh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1631/2018

[2020] HKCFI 969

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1631 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 attended the hearing on 8 August 2019.

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

a.     the description for the respondent was blank; and

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

The applicant

4.The applicant is an Indian national. He came to Hong Kong as a visitor on 19 December 2012. He was permitted to stay until 2 January 2013. He overstayed and was arrested by police on 3 February 2013. He lodged his torture claim under Part VIIC of the Immigration Ordinance, Cap 115 (“the Ordinance”) on 7 February 2013. His torture claim was rejected on 14 June 2013. He appealed against that decision on 27 June 2013 and his appeal was also rejected on 17 February 2014. By way of written representation of 27 June 2013, he lodged a non-refoulement claim.

5.In support of his claim, he said that if refouled, he would be killed by (i) members of Anna Dravida Munnetra Kazhagam Party, who he believed to have framed him up in two criminal cases for his participation in Communist Party and (ii) Kurushav and his gangsters for harbouring the love affairs between Kurushav’a daughter, Vanitha and her boyfriend, Dinesh.

6.In relation to police framing him up, he referred to two incidents. One incident was that the police framed him up for assaulting somebody. He had to instruct a lawyer to go to court for bail. The second incident was that he was framed up by police for vandalizing police vehicle in a religious festival, in which he took part. He was arrested and detained by police for four days inside police station. He instructed a lawyer to get him out.

7.In relation to (ii), he had accommodated his friend Dinesh to prepare a marriage ceremony with Vanitha whereas Vanitha’s parent, Kurushav opposed the marriage. He had asked another friend to accommodate the couple. Kurushav got some gangsters to chase Vanitha and got her back. They had also assaulted and hurt Dinesh. Kurushav obtained the information that the applicant took part in making the marriage arrangements. He sent gangsters to the applicant’s home where the applicant had escaped. They assaulted and disgraced his wife, children and father. They threatened that they would behead the applicant when they saw him. The applicant felt insecure. He got an agent, who arranged him to come to Hong Kong.

The Director’s Decision

8.The Director did not consider his torture claim which had been dealt with previously. He considered his application in relation to the following risks:

a.     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”);

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”).

9.By Notice of Decision dated 18 August 2017, 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 25 May 2018 and 7 June 2018 respectively.

11.By Decision dated 6 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 cross-examined his evidence given to the Director and, for the reasons set out in the Board’s Decision came to the conclusion below.

a.     It accepted that the applicant had been criminally charged as alleged. However, it rejected the conclusion that those charged were fabricated or politically motivated [88].

b.     Although Kurushav’s people had beaten up his family, there was no evidence of how serious their injuries were or that they were further injured [100].

c.     Vanitha had married another man and they live near the applicant’s home [100].

d.     There was no evidence that the state was involved [100].

e.     Even the applicant had been subjected to ill-treatment he claimed by Kurushav, the Board found that it failed to reach the minimum level of severity threshold required to establish any of the applicable grounds [108].

f.     Even if there is a real risk that the applicant may come to be harmed, it is localized in where he lived. The option of internal relocation is available to him [120-121]

Application for leave to apply for judicial review

13.He filed Form 86 dated 14 August 2018 for leave to apply for judicial review of the Board’s Decision.

14.In his affirmation, he did not set out any reasons or grounds in support of his application.

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 put the Board’s findings above to the applicant and asked him if he had any comments on them. He said he did not have any 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.

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