Case Document

100%Judiciary

HCAL 1882/2018

[2020] HKCFI 1553

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1882 of 2018

BETWEEN

	Sharda Ajay	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 the 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 7 September 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. The applicant failed to attend the hearing scheduled on 6 December 2019 without any explanation or prior notice. 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 the Board and replacing it with the Director of Immigration (“the Director”) as interested party.

The applicant

4.The applicant is an Indian national. He came to Hong Kong on 29 March 2013 as a visitor and was allowed to stay until 12 April 2013. He overstayed and was arrested by police on 28 June 2013. He lodged his non-refoulement claim on 10 March 2014.

5.He claimed that if refouled, he would be harmed or even killed by members of the Congress Party. He was also under continuous threats from the Sikhs because of his family and religious background.

6.The events leading to his departure from India for Hong Kong can be summarized below.

a.Because of a massacre of the Sikhs in 1984, tension between the Hindu and the Sikh were tense. His family were Hindus.

b.In 1991 or 1992, his father encountered a wild shooting by the masked men and they killed five or six men in the registration office of land. His father was not injured. Those masked men were suspected to be the Sikhs.

c.The Sikhs warned his mother, who was a teacher teaching in a school that the Sikhs would take revenge on her as she was Hindu. As a result, she resigned.

d.In the university, he was bullied by the Sikh students. He was slapped on his face and assaulted by the students with bare hands for some 15 to 20 minutes for a number of times.

e.His father bought a shop belonging to Kumar, a member of Parliament of the Congress party in Chandigarh through the agents. The agents obtained the purchase price but refused to process the documents for conveyance of the shop to his father. His father demanded his money back but was refused. They also attacked him and his uncle with wooden sticks and bare hands. His father was threatened not to report the fraudulent sale of shops by Kumar.

f. His parents thought it was not safe for him to stay in India. They arranged him to leave India for Hong Kong.

The Director’s Decision

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 7 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 upon his return to India [12]; that state protection was available to him [17] and internal relocation was an option open to him [23]. His claim under BOR2 risk was not established.

The Board’s Decision

9.The applicant appealed to the Board against the Director’s Decision. 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 Decision.

11.The Board considered the applicant’s evidence and found that it did not accept that there were substantial grounds for believing that the applicant faced a real risk of any of the proscribed forms of harm if he returned to India as a result of his claimed descent from Ravana, capitalist mindset, as a Hindu who ate beef or due to his lifestyle, thoughts or opinions. See §§43-84 of the Board’s Decision.

Application for leave to apply for judicial review

12.The applicant filed Form 86 dated 10 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 ground in support of his application. He did not say what error the Board had committed in coming to its decision.

DISCUSSION

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

CONCLUSION

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

Dated the 15^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 15/7/2020 Sharda Ajay 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 15/7/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 6589/17/3/244/IN1307 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 3223/16(formerly RBCZ 3000263/14) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)