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

HCAL 1803/2018

[2020] HKCFI 1465

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1803 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:

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 27 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 did not attend the hearing on 1 November 2019. I shall now consider his application on paper.

The applicant

3.The applicant is an India national. On 15 September 2012, he came to Hong Kong as a visitor. Since 30 September 2012, he overstayed. On 19 May 2013, he was arrested for overstaying and was convicted of the offence. He was sentenced to three weeks’ imprisonment suspended for one year.  On 10 March 2014, he raised a non-refoulement claim.

4.He claimed that if refouled, he would be harmed or killed by a member of the Indian Congress Party named Vikram Chhabra (“the money lender”), to whom he owed three million Indian Rupees.

5.The incidents took place as set out below.

a.     He and his father set up a business of trading iron products in 2006. In order to expand the business, he borrowed three million Indian Rupees from the money lender. His father stood as the guarantor.

b.     Starting from March 2010, the business went down as the customers did not pay for the goods. On 25 October 2010, the business was closed down and he was unable to repay the loan or the interest.

c.     On 20 February 2011, the money lender went to his home together with five to six subordinates for payment. He was assaulted by them by bare hands and hockey sticks. He sustained injury of bruises and swellings all over the body.

d.     On 13 March 2011, his father passed away. The money lender came to his house for repayment more frequently. The money lender warned him to repay by August 2011 or he would be killed.

e.     He moved to live in his relatives’ houses and came across no problem. His two uncles advised him to leave India for Hong Kong. He took their advice.

The Director’s Decision

6.The Director considered his application in relation to the following risks:

a.     torture risk under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”);

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 27 April 2017, the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that the level of risks was low [12]; state protection [30] and relocation [34] were available to him.

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision. He attended a hearing before the Adjudicator on 28 May 2018.

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 was of the view that it did not accept that he had borrowed a loan from the money lender and that the money lender had threatened him for repayment. See paragraphs 89 of the Board’s Decision.

Application for leave to apply for judicial review

11.The applicant filed Form 86 on 3 September 2018 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of this application, he did not state that the Board had committed any error in reaching its decision. He simply said that he could not go back to India as it was dangerous for him to do so.

DISCUSSION

13.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

14.The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.

CONCLUSION

15.Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the intended judicial review. Accordingly, I dismiss his application.

Dated the 9^th day of July 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