Case Document

100%Judiciary

HCAL 1848/2018

[2020] HKCFI 1207

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1848 of 2018

BETWEEN

	Lovely	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only; or
	consideration of documents and oral submission by the Applicant in open court;

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 of the Decision dated 31 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.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, 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 January 2020.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 was amended by deleting the Board and replaced it by Director of Immigration (“the Director”) as interested party.

The applicant

4.The applicant is an Indian national. He came to Hong Kong on 14 May 2015 as a visitor and was allowed to stay until 28 May 2015. He overstayed. He surrendered himself to the Immigration Department on 29 June 2015. He lodged his non-refoulement claim on 29 July 2015.

5.He claimed that if refouled, he would be harmed or even killed by some guys who had a political affiliation since he had a land dispute with them.

6.The land dispute was with Kashmir Singh, who rented a piece of farmland from the applicant’s father in 2014, paying a monthly rent of 35,000 Indian Rupees. After one year, when his father decided to recover the land for the applicant’s use, Kashmir refused to vacate the land. He and his 7 or 8 subordinates assaulted him and his father when they tried to recover the land. Kashimir threatened to kill him if he ever dared to ask for the land back. He reported the matter to police, who did not make investigation. On another occasion when he was attacked by Kashmir and his subordinates with wooden sticks near his land, he reported the matter to another police station. In that police station, he saw Kashmir. Then he was taken into a cell and was beaten up by police officer with a belt. He sustained injuries. He dared not report further to other police stations. On one occasion, he met Kashmir on the way to grocery shopping. Kashimir shot at him. He escaped. Kashmir looked for him from time to time. He moved to live in his aunt’s house. Finally, he took his father’s advice to leave India for Hong Kong in 2015.

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 31 October 2017, the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that the level of risk as he alleged if he returned to India was low [14]; that state protection was available to him [15] and internal relocation was an option open to him [16]. His claim under BOR 2 risk was not established.

The Board’s Decision

9.The applicant appealed to the Board against the Director’s Decision. He attended a hearing before the Adjudicator on 1 June 2018.

10.By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decision.

11.The Board considered the applicant’s evidence and found that the applicant was not a credible witness [81]; that he had made claims which were contradictory in various respects, either internally or with other evidence [84]. Taking all the inconsistencies and contradictions into account, the Board did not accept that the applicant’s family was involved in a land dispute with a former tenant; that he had been threatened, attacked or hospitalized; that he was in hiding because of such dispute; that his claims were true or that he was at risk of being harmed if he returned to India [88-90].

Application for leave to apply for judicial review

12.The applicant filed Form 86 on 5 September 2018 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of his application, he simply said that he disagreed with the Board and that he would be in danger if he returned to India. He did not set out the grounds in support of his application.

DISCUSSION

14.He appeared before me and confirmed that he was treated fairly by the immigration officer and the Adjudicator of the Board. His lawyer had explained the Director’s Decision to him. The interpreter of the Board had also explained the Board’s Decision to him. He had no comments on the Board’s findings.

15.In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that 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 and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

16.There is nothing to show that the Board had committed any error in its application of the law to his case or in coming to its conclusion on the facts of the case.

17.The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.

CONCLUSION

18.I therefore refuse to grant leave to the applicant to apply for judicial review. Accordingly, I dismiss his application.

Dated the 17^th day of June2020

	(Mike Mak)
	for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 17/6/2020 Lovely Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 17/6/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 9163/17/11/174/IN1721 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2377/17 (formerly RBCZ 12573/15) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)