Case Document

100%Judiciary

HCAL 1770/2018

[2020] HKCFI 1290

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1770 of 2018

BETWEEN
	Sk Danish	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 24 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 6 December 2019.

3.Leave was granted to the applicant to amend Form 86 by deleting the Board and replacing it with the Director of Immigration (“the Director”) as interested party.

The applicant

4.The applicant is an Indian national. He came to Hong Kong on 21 December 2014 as a visitor and was allowed to stay until 4 January 2015. He overstayed and was arrested by police 21 January 2015. He was referred to the Immigration Department the next day. He lodged a non-refoulement claim on 23 January 2015.

5.He claimed that if refouled, he would be harmed or even killed by his enemy Suraj Shaw.

6.Suraj was running a garment business. He joined the business as a partner in June 2014 and invested 1.7 million Indian Rupees in the partnership. The money was from his father, who borrowed it from the money-lender. He had a dispute with Suraj because Suraj did not account for the profits to him. He asked for the invested money back from Suraj, who refused and they had on two occasions fought with one another. On the second occasion, Suraj was assisted by his friends and they assaulted him with wooden sticks. He reported the matter to police, which refused to take on the matter. He complained to the councilors, who advised him to compromise with Suraj. He suspected that they were connected with Suraj. Suraj knew that he had complained to the councilors. He summoned the applicant to his shop where he threatened to kill him if he continued to do so. He was scared and therefore fled to Hong Kong.

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 29 January 2018 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that there were no substantial grounds for believing that he would be subject to the harm he claimed if he returned to India [13]; that state protection was available to him [18] and internal relocation was an option open to him [23]. His claim under BOR2 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 18 May 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 it accepted that there was a business dispute between the applicant and Suraj. It did not accept his new evidence at the hearing that his brother was attacked at home and was hospitalized for one month and that their dispute had become a wider religious issue or taken on any religious connotations. On the evidence appeared it, the Board was not satisfied that there was any real risk that he would suffer any of the proscribed forms of harm at the hands of Suraj or his friends if he returned to India. See paragraphs 56-66 of the Board’s Decision.

Application for leave to apply for judicial review

12.The applicant filed Form 86 dated 28 August 2018 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of his application, he did not set out any ground in support of his application. He did not say what error the Board had committed in coming to its decision.

DISCUSSION

14.The applicant appeared before me and he confirmed that he was treated fairly before the immigration officer and the Adjudicator of the Board.

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

16.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.

17.The applicant is unable to show that he has 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 24^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 24/6/2020 Sk Danish 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 24/6/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 10186/18/2/70/IN1921 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 3397/17(formerly RBCZ 10364/15) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)