Vijay v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 1872/2018

[2020] HKCFI 1289

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1872 of 2018

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 Applicant being absent 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 16 July 2018 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 CACV 8/2018, [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 failed to attend the hearing on 20 December 2019 without prior notice or explanation. I shall consider his application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, the Court, on its own motion, amended Form 86 by deleting the Director of Immigration (“the Director”) as the respondent and by deleting the Board and replacing it with the Director as interested party.

The applicant

4.The applicant is an Indian national. He came to Hong Kong on 1 February 2012 and was denied entry by the Immigration Department. He lodged a torture claim on the same day, which was rejected by the Director on 26 April 2012. He filed a petition against the Director’s decision on 30 April 2012. His petition was dismissed on 28 May 2012. He lodged his non-refoulement claim by way of a written representation dated 3 March 2014.

5.He claimed that if refouled, he would be harmed or even killed by Mr Ishwar Chand Sharma, the landlord, with whom his father had a tenancy dispute. The tenancy dispute was that the landlord wanted to re-possess the shop. His father asked for the refund of the rental deposit, but the landlord refused to return the rental deposit to him, saying that the rental deposit was non-refundable. His father refused to vacate the shop until he had his rental deposit back from the landlord. The landlord went to his father’s shop from time to time, telling his father that he should vacate the shop. At one time, the landlord told his father that he had better leave if he wanted to see his son alive. His father was concerned about his safety as the applicant is the only son of the family. His father sent the applicant to Hong Kong.

The Director’s Decision

6.As he had raised his Torture Claim before and failed, the Director considered his application in relation to the following risks:

a.  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”);

b.  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

c.  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 10 March 2017 (“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 harmed or killed by his creditor upon his return to India [11]; that state protection and alternate avenues to seek justice were available to him [14 & 16] and internal relocation was an option open to him [20]. His claim under BOR2 risk was not established.

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision. He did not attend a hearing before the Adjudicator on 26 March 2018. The Board demanded an explanation from him under section 15 of Schedule 1A of the Immigration (Amendment) Ordinance, Cap 115. He failed to provide any explanation for his absence to the Board within seven days. The Board therefore proceeded to consider his appeal on paper in his absence.

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 in the hearing bundle and found that the applicant had not made out a case in respect of the risks he claimed. See §§46-55 of the Board’s Decision. It also found that internal relocation was an option open to him even if he were subjected to those risks [56-60].

Application for leave to apply for judicial review

11.The applicant filed Form 86 dated 7 September 2018 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of his application, he said that the Board’s Decision was unreasonable as he was not given the chance to explain himself.

DISCUSSION

13.The Board had considered the merits of the applicant’s case.

14.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.

15.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 conclusions on the facts of the case. His ground in support of his application does not assist him as he did not attend the hearing of his appeal.

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

CONCLUSION

17.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

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

Form CALL-1