CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1920 of 2018
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
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.
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 (“RHC”), 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 attended the hearing on 11 September 2019.
The applicant
3. The applicant is an Indian national. He came to Hong Kong on 20 April 2016 as a visitor and was permitted to stay until 4 May 2016. He overstayed. On 10 May 2016, he surrendered to the Immigration Department and lodged a non-refoulement claim. He was also convicted of a criminal offence, for which he was sentenced to 6 months’ imprisonment.
4. He claimed that if refouled, he would face different threats and danger from different parties of his home village and he would be killed by those parties concerned.
5. He claimed that he would be harmed by the Bharatiya Janata Party members because he refused to support it. He would be wanted by the police for the theft and default of loan cases, which he said were false charges. He was unable to return the money of 20 Lakhs to the investors who were convinced by him to invest in the India pearls Limited Company, which was closed down in 2015. Lastly, he was unable to settle the loan of 500,000 Indian rupees to the landlord for financing his trip to Hong Kong for employment. In India, he had been attacked by those people with bare hands and wooden sticks.
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 8 June 2018, (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.
The Board’s Decision
8. The applicant appealed to the Board against the Director’s Decision. He was at that time being imprisoned, so he requested no hearing for his appeal. The Board acceded to his request and made the assessment of his appeal on the papers.
9. By Decision dated 16 August 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.
10. The Board considered the applicant’s evidence. For the reasons that it set out in its Decision, it found the facts below.
a. The applicant’s assertions of risk of harm from the Indian government were highly improbable and fanciful [56].
b. Most, if not all, the core assertions to the non-refoulement claim were fabricated or was wholly unreliable [58].
c. There was no evidence that the Indian government was involved in the incidents [62].
d. State protection was available to the applicant [66].
Application for leave to apply for judicial review
11. He filed Form 86 dated 22 August 2018 for leave to apply for judicial review of the Board’s Decision.
12. In his affirmation in support of his application, he did not set out any reasons that he considered the Board’s Decision was wrong or unfair.
DISCUSSION
13. The applicant appeared before me and he confirmed that he was free to advance his case to the immigration officer and that he requested no hearing for his appeal because he had nothing to add to his evidence.
14. The Court of Appeal in Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14 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 fails to show that he has any reasonable prospect of success in his proposed judicial review.
CONCLUSION
16. 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.
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