Case Document

100%Judiciary

HCAL 1757/2018

[2020] HKCFI 1221

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1757 of 2018

BETWEEN

	Sunil Kumar	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 18 July 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 9 October 2019.

3.Leave was granted to the applicant to amend Form 86 by amending the date of the Board’s Decision to 18 July 2018 and by deleting CiC as the interested party, to be replaced by the Director of Immigration (“the Director”).

The applicant

4.The applicant is an Indian national. He came to Hong Kong on 17 October 2016 and was arrested on the same day by police. He was referred to the Immigration Department on 18 October 2016. On 18 November 2016, he lodged a non-refoulement claim. He was released on recognizance. He was arrested by taking up employment illegally and was convicted and sentenced for 13 months’ imprisonment on 16 September 2017.

5.He claimed that if refouled, he would be harmed or killed by his paternal uncle, his sons and their associates over a piece of land inherited from his father. The crux of the dispute was that the piece of land was inherited by his father from his grandfather. His uncle and his sons asked a share of the piece of land from his father. His father refused and conveyed the land to him. His uncle and his sons then followed up their pursuit with actions, all between 2012 and September 2016, which led him to leave India for Hong Kong. Those incidents are set out below.

a.     In 2012, they just asked for a share of the land and his father rejected them. They were angry and left.

b.     In early 2016, whilst he was on his way going home, his uncle approached him and threatened him that he should give up his land.

c.     One day after, the uncle brought his sons and associates to the land where they beat him up with sticks for some 10 minutes. He was injured but he did not report the matter to police.

d.     In April 2016, his house was damaged and vandalized by his uncle and his sons and their associates.

e.     In May 2016, he was attacked by his uncle and some unknown men with knives and swords. He was badly injured on his right heel and his left thigh, which bled profusely. Again, he did not report to police.

f.     He moved to Chidawa where his maternal aunt lived. He stayed there for two to three months. But he was told that his uncle was looking for him.

g.     In September 2016, he made arrangement to leave India for Hong Kong. When he was in Shenzhen, he was told that his uncle had stabbed his father. His father died shortly afterwards.

The Director’s Decisions

6.The Director considered his application in relation to the following risks:

a.     torture risk under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”);

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 26 June 2018 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director considered his evidence in light of the Country of Origin Information and concluded that state protection would be available to him [16]; internal relocation was an option open to him [17] and that he did not accept that he would face a real risk of ill-treatment by his uncle if he returned to India [27].

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision. However, he wrote to the Board that he was unwilling to attend the hearing. He asked the Board to assess his case and send him the result. The Board acceded to his request.

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

10.The Board considered the applicant’s evidence. It applied the rule of evidence in the evaluation of his evidence and came to the conclusion that his claim had been fabricated or was wholly unreliable [31]. The Board considered that it was not necessary to consider relocation, relying upon Robinson, R (on the application of ) v SSHD & Anor [1997] EWCA Civ 3090 (11 July 1997).

Application for leave to apply for judicial review

11.The applicant filed Form 86 on 27 August 2018 for leave to apply for judicial review of the Board’s Decision.

12.The applicant relied upon a 23-page grounds for his application. The submissions are in fact a jumble of convoluted, discursive and repetitive reasons borrowed from various sources as most of them are irrelevant to the issues in this case. I shall endeavor to summarize them for the purpose of this assessment. They all refer to the Board.

1.     Err in law – failing to consider relevant evidence; failing to refer to adverse Country of Origin Information (“COI”); assault not amount to torture; improper rejection of hearsay evidence and in the definition of persecution.

2.     Procedural impropriety/unfairness – failing to carry out sufficient research and inquiry into COI on updated materials and just relying on outdated materials; failed to obtain requisite documents in support of his case; failing to provide the hearing bundle on time with translation, making him confused at the hearing; rise; applying the incorrect standard of proof, and failing to provide legal representation or service to him.

3.     Irrationality – cherry-picking COI and relying upon outdated materials; failing to find fact whether there was a consistent pattern of gross, flagrant of mass violation of human rights as required under Article 3(2) of CAT; failing to assess state protection or extended meaning of state protection; failing to consider relevant information or considered irrelevant information to his prejudice.

DISCUSSION

13.The applicant appeared before me and he confirmed that he was free to express himself before the immigration officer. He also admitted that he wrote to the Board that he was not attending the hearing and asked the Board to assess his appeal on that basis.

14.It is obvious that the Board rejected his evidence on the facts of his claim. Therefore, he has no factual basis for his claim.

15.I put the Board’s findings above to the applicant and asked him if he had any comments on them. He said that he had no comments.

16.The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22 held that the applicant is not entitled to free legal representation at every stage of the proceedings as he had already had duty lawyer’s service at the screening stage.

17.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held that assessment of the evidence is within the province of the Director and the Board. The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board [13].

18.The grounds above are either his opinions without any evidence in support of them or they are irrelevant to the assessment by the Board in his case. I find that none of them supports his case.

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

CONCLUSION

20.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 18^th day of June 2020

	(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 18/6/2020 Sunil Kumar 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 18/6/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 12346/18/7/96/IN2466 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1884/18 (formerly RBCZ 13612/16) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)