Case Document

100%Judiciary

HCAL 1817/2018

[2020] HKCFI 1468

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1817 of 2018

BETWEEN

	Yadvinder Singh	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 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 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 21 November 2019. I shall proceed to 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 “CIC” and replaced it by Director of Immigration (“the Director”) as interested party.

The applicant

4.The applicant is an Indian national. He came to Hong Kong on 7 December 2013 as a visitor and was permitted as such until 21 December 2013. He overstayed. On 23 December 2013, he surrendered to the Immigration Department. He lodged a non‑refoulement claim on 3 March 2014.

5.He claimed that if refouled, he would be harmed or killed by Mr. Sandeep Singh and his subordinates because his brother had assisted Mr. Sukhvir Singh to kill Sandeep’s brother, who refused to convey a piece of land to Sukhvir, his son. His brother was arrested. Sandeep, however, was angry and threatened to kill him for revenge. On one occasion, Sandeep and his 10 subordinates attacked him with weapons. He was badly injured. He reported to police. The police did not take action. He left India for Hong Kong in order to avoid Sandeep.

The Director’s Decision

6.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”).

7.By Notice of Decision dated 6 July 2018, the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that the risk of harm if he returned was low [12]; that state protection was available to him [16] and internal relocation was an option open to him [19].

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decisions. Pursuant to section 12 of Schedule 1A of the Ordinance and paragraph 15 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme, the Board decided to deal with the appeal on paper without a hearing.

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 it found that he had not proved the material facts and even if his evidence were accepted, given the manner in which he was attacked, he had not proved that the fear risk is likely to materialise if he returns to India [20]. The Board also held that relocation was an option open to the applicant [55].

Application for leave to apply for judicial review

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

12.In his affirmation in support of his application, he submitted that he could not go back to his country. He did not say what errors the Board had committed in coming to its decision.

DISCUSSION

13.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.

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

CONCLUSION

15.I therefore refuse to grant leave to the applicant to apply for leave for judicial review. Accordingly, I dismiss his application.

Dated the 10^th day of July 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 10/7/2020 Yadvinder Singh 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 10/7/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 12540/18/7/290/IN2501 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2402/18 (formerly RBCZ 60/18) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)