Case Document

100%Judiciary

HCAL 1558/2018

[2020] HKCFI 1392

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1558 of 2018

BETWEEN
	Naresh Masih	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:

(1) Extension of time for application for leave to apply for judicial review of the decision of Torture Claims Appeal Board dated 26 April 2018 be refused; and

(2) Application for leave to apply for judicial review be dismissed.

IT IS FURTHER DIRECTED that:

(1) If the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

(2) When filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

(3) The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

(4) If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

(5) Liberty to apply.

Observations for the Applicant:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Decision dated 26 April 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office. Previously, the Board had made a Decision dated 24 December 2015, which I shall call (“the Board’s First Decision”) and the other one (“the Board Second Decision”).

2.The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended by adding the Director of Immigration (the “Director”) as interested party.

The applicant

4.The applicant is an Indian national. He came to Hong Kong on 27 July 2015 and was denied entry by the Immigration Department. On the same day, he lodged his non-refoulement claim.

5.He claimed that if refouled, he would be harmed or killed by two members of the Akali Dal Party (“ADP”) because he was a supporter of the Congress Party (“CP”) and he refused to join ADP. He had been attacked four times by the members together with other people with weapons. See §8 of the Board’s Decision dated 24 December 2015 for details.

The Director’s Decisions

6.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”).

7.By Notice of Decision dated 2 October 2015 (“the Director’s Decision”), the Director refused his claim on Torture risk, BOR 3 risk and Persecution risk for the reason that his claim was not substantiated. The Director found that the level of risk of harm was assessed to be low [10]; that state protection would be available to him [14] and internal relocation was an option open to him [15].

8.By Notice of Further Decision dated 15 February 2017 (the “Director’s Further Decision”), the Director rejected his claim on BOR 2 risk because he was unable to establish it by evidence.

The Board’s Decisions

9.The applicant appealed to the Board against the Director’s Decisions. He attended a hearing before the Adjudicator on 1 December 2015

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

11.In its First Decision, the Board considered the applicant’s evidence and for the reasons set out in paragraphs 11-34 and 35-39, it came to the conclusion that his story was not reliable. On those reasons, the Board rejected his claim on the Torture risk, BOR 3 risk and Persecution risk. Below is a summary of the Board’s findings.

a. The Board had borne in mind the general legal principles for assessment of the evidence, including the country of origin information [11-34].

b. There were major and fundamental differences in his evidence in the written representation and that in the Non-refoulement Claim Form.

c. The applicant’s evidence was inconsistent with the country of origin information.

d. There was no evidence to support the applicant’s allegation of being harmed or ill-treated by persons of significant connections.

e. Overall, the applicant was not a reliable witness. [35-39]

12.The Board’s Second Decision deals with his appeal against the Director’s Further Decision on BOR 2 risk. The Board found that there was no evidence that he was subjected to BOR 2 risk [14].

Application for leave to apply for judicial review

13.The applicant filed Form 86 on 6 August 2018 for leave to apply for judicial review of the Board’s Decision dated 26 April 2018.

14.In his affirmation in support of his application, he said that it was still not safe to go back to his country and his life would be in danger if he went back.

DISCUSSION

15.The applicant’s application for leave is out of time. The Court shall apply the principles set out in AW v Director of Immigration [2016] 2 HKC 393 in considering if extension of time should be granted.

16.I shall take both of the Board’s Decisions into consideration as the Board had taken the facts in both Decisions for its assessment of the applicant’s case.

17.The applicant has given no reasons for his late application.

18.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. See para. 11 above. The Court does not find any error of law or procedural unfairness in its decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

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

CONCLUSION

20.I therefore refuse to extend time for the applicant to apply for leave for his intended judicial review.

FURTHER DIRECTIONS

21.It is further directed that

(1) If the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

(2) When filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

(3) The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

(4) If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

(5) Liberty to apply.

Dated the 29^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 29/6/2020 Naresh Masih 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 29/6/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 2420/15/10/89/IN503; BOR 173/17/2/82/IN51 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1840/15 & RBCZ 9001788/16 (formerly RBCZ 372/15) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)