Ganesan Sathiyaraj v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 1637/2018

[2020] HKCFI 1006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1637 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.     wrong description for the respondent; 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.     deleting the wrong information and 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 9 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 1 April 2016. He was permitted to stay until 15 April 2016. He overstayed and surrendered to the Immigration Department on 18 April 2016. On 14 July 2016, he was convicted of the offence of breach of condition of stay. He was passed a suspended sentence. He lodged his non-refoulement claim on 5 July 2016 and 15 July 2016.

5.In support of his claim, he said that if refouled, he would be killed by his employer, Vengidasalam (“V”) because of money dispute and that he had knowledge of V’s illegal money transactions with other parties.

6.He said that he was a junior software engineer when he joined V’s company. He had access to confidential and illegal information relating to the company’s money transfer to other parties. He borrowed money from V to set up his own business of buying and selling computer parts. At the beginning of his business, he was able to make profits where V demanded a sharing 25% of his profit on top of the interest on the loan. The business turned bad by December 2014, but V refused to change the term and demanded payment of the profit. He had to borrow money from other source to pay him. He threatened V that if pressed, he would divulge the confidential information. V sent some people to assault him when he left office. He was unconscious and found himself in the hospital when he came round. He did not go elsewhere after this attack and was so depressed that he thought of committing suicide. He was approached by an agent, who arranged his departure from India for Hong Kong upon payment of agency fee.

The Director’s Decision

7.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”).

8.By Notice of Decision dated 8 December 2016, the Director refused his claim for the reason that his claim was not substantiated.

The Board’s Decision

9.The applicant appealed to the Board against the Director’s Decision and he attended a hearing before the Adjudicator on 28 February 2018.

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

11.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 borrowed money from a moneylender in India. But it did not accept that the rest of his claims were credible [51].

b.     It did not accept that he could not get police protection [52].

c.     It did not accept that he was beaten up because of the money problem [53].

d.     It found that his claim that he was pursued and harassed by the moneylender as claimed was untrue and thus, his fear of such harm, was unfounded [57].

Application for leave to apply for judicial review

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

13.In his affirmation, he said that he was not satisfied with the Board’s decision and that the Board did not understand his situation in India.

DISCUSSION

14.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.

15.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. The Board had committed no error in coming to its decision.

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

CONCLUSION

17.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 2^nd day of June 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