Mitra Joy Kumar v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 1898/2018 on BabelCite. This High Court CFI judgment was delivered on 29 June 2020.
1. This is the applicant’s application for leave to apply for judicial review of the Decision dated 17 April 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“ the Board’s Decision ”).
Cited by 1 case · Cites 1 case
|
HCAL 1898/2018 [2020] HKCFI 1397 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1898 of 2018 BETWEEN
Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge’s decision (Ord. 53 r. 3) Following;
Order by Deputy High Court Judge K.W. Lung:
IT IS FURTHER DIRECTED that:
Observations for the Applicant: THE APPLICATION 1.This is the applicant’s application for leave to apply for judicial review of the Decision dated 17 April 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). 2.The applicant asked for a hearing. He attended the hearing. The applicant 3.The applicant is an Indian national. He had come to Hong Kong before and lodged a torture claim on 17 June 2008. He withdrew his claim on 8 September 2010. He lodged another torture claim on 12 May 2011, which was rejected on 11 August 2011. He came to Hong Kong illegally on 7 June 2016. He surrendered to the Immigration Department and made his non-refoulement claim on 8 July 2016. 4.He claimed that if refouled, he would be harmed or killed by members of the Communist Party of India (Maxist) (the “CPIM”) for reasons arising from a political dispute. 5.He joined the The All India Trinamool Congress (“TMC”) in 2000 or 2001. TMC was a rival party with CPIM. Between 2007 April and 2015, he was attacked by members of CPIM for four times and they also threatened him by phone. In the first attack in 2001, he was assaulted by 10-12 members of CPIM. He sustained a fracture in his left forearm. A steel plate was inserted which remains. He was hospitalized for 22 days. He did not report the attack to police. He believed that that police would not be interested. The second attacked took place in January 2011 whilst he was on his way to the doctor for chickenpox treatment. He was attacked by 7-8 people. On 7 April 2011, he was attacked by six people. In the 4th attack, he was beaten up by 12-15 people. His middle finger was cut by a broken bottle and his right wrist was slashed. He continued receiving threatening calls after the 4th attack. He then came to Hong Kong. The Director’s Decision 6.The Director considered his application in relation to the following risks:
7.By Notice of Decision dated 25 January 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director found that there was no substantial ground to believe that he would be harmed or killed by his opponents upon his return to India [16]; that state protection would be available to him [17] and that relocation was an option open to him [18], and that he was unable to establish BOR 2 risk [24]. The Board’s Decision 8.The applicant appealed to the Board against the Director’s Decision. He attended a hearing before the Adjudicator on 7 and 9 November 2017 respectively. 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 and found that the applicant was not a good witness. He was evasive and his answers were self-contradictory. He failed to answer the questions [32]. On the second day, he insisted that he would not answer the Board’s questions and asked the Board to make decision on that basis, despite the fact that the Board told him that there were inconsistencies in his evidence and it wanted his clarification [33]. The Board finally came to a conclusion that his case was not borne out by the evidence [36]. See the detailed analyses in paragraphs 39-96. The Board also found that there would be state protection for him [122]. Also, internal relocation was an option open to him [127]. Application for leave to apply for judicial review 11.The applicant filed Form 86 on 11 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 he would be in danger if he was sent back to his country. DISCUSSION 13.His application is beyond 3 months from the date of the Board’s Decision. This court has to consider the merits of his intended judicial review in order to determine whether time should be extended for him to make this application. 14.He appeared before the Court and confirmed that the interview before the immigration officer and the Board were fair and he was free to give evidence. His lawyer had explained the Director’s Decision to him. He had no comments on the Board’s findings above. 15.There is no evidence to show that the Board erred in the finding of the facts or the application of the laws to his case. 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 extend time for the applicant to apply for leave to apply for his intended judicial review. Accordingly, I dismiss his application. 18.It is further directed that:
Dated the 29th 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 |
Cases cited in this judgment
Other judgments that cite this case
Further hearings and rulings under HCAL 1898/2018