Case Document

100%Judiciary

HCAL 1864/2018

[2020] HKCFI 1284

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1864 of 2018

BETWEEN
	Patel Samir Gulab	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 6 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 23 January 2020.

3.Leave was granted to the applicant to amend Form 86 by deleting Immigration Department and replacing it with the Board as the proposed respondent.

The applicant

4.The applicant is an Indian national. He came to Hong Kong on 15 January 2010 as a visitor and was allowed to stay until 29 January 2010. He surrendered himself to police on 31 January 2010. He was referred to the Immigration Department on 1 February 2010. He lodged a non-refoulement claim on 2 February 2010.

5.He claimed that if refouled, he would be harmed or even killed by a gangster called Sheikh Hassan (“SH”) who had persuaded him to ask his parents to sell him a house which was under his father’s name. SH had even threatened him that if he failed to do so, he would be forced to leave the area.

6.Also, he feared that he might be arrested by the authority because of a false case framed on him. He had been arrested by police on a joint enterprise with three others for kidnapping and raping Sarita. He was detained by police for several months. He was granted bail by the court in early 2005. In 2008, he reached a settlement with Sarita, as a result of which, he married her on 3 December 2008.

The Director’s Decisions

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 20 October 2015, 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 claimed if he returned to India was low [36]; that state protection was available to him [47] and internal relocation was an option open to him [50]. By Notice of Further Decision dated 12 June 2017, the Director found that his claim under BOR2 risk was not established.

The Board’s Decision

9.The applicant appealed to the Board against the Director’s Decisions. He attended a hearing before the Adjudicator on 13 July 2018.

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

11.The Board considered the applicant’s evidence and found that he had never suffered any assault or injury from SH, nor any serious ill-treatment or serious harm, which, coupled with the country of origin information, rendered his alleged fear of future harm remote. He therefore failed the threshold for a non-refoulement claim under the risks above [2.5]. As to his fear of police’s framing him up, it should not exist because he had settled the case with Sarita, whom he married subsequently [2.2]

Application for leave to apply for judicial review

12.The applicant filed Form 86 on 6 September 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 grounds in support of his application. He did not say what error the Board had committed in coming to its decision. He simply said that what he submitted to the Board was true and he could not go back to India.

DISCUSSION

14.The applicant appeared before me. He confirmed that he was treated fairly when he before the immigration officer and the Adjudicator of the Board. The duty lawyer had explained the Director’s Decisions to him and he could read the Board’s Decision himself. 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 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 Patel Samir Gulab 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 2499/15/11/11/IN529 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 673/15 (formerly RBCZ 262/10) & RBCZ/9002044/17 Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)