Virdhi Karun v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 2415/2018

[2020] HKCFI 1665

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2415 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 24 October 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.Leave was given to the applicant to amend Form 86 by deleting the Director of Immigration as respondent, deleting the Director’s Decision dated 29 January 2018 for relief and deleting the Torture Claim Appeal Board/Non-Refoulement Claims Petition Office as interested party.

The applicant

3.The applicant is a national of India. He came to Hong Kong on 13 October 2015 illegally through China. He surrendered to the Immigration Department on 15 October 2015. He lodged his non-refoulement claim on 5 April 2016.

4.He claimed that if refouled, his life would be in danger because he might be harmed or killed by his uncle due to land dispute.

5.He came to Hong Kong because of the events below.

a.In 2012, his uncle came to his home and produced a document, which he claimed to be the title deed of the piece of land they were occupying as their home. The piece of land was registered in his mother’s name. His uncle’s document also bore his mother’s name. His uncle said that his mother had signed the deed to transfer the land to him. He therefore came to evict the applicant’s family. It was discovered that his mother signed the document, thinking that it was an insurance policy application form. It was a mistake.

b.His family refused to vacate the house. They reported this matter to police, which refused to take further action. He considered that it was because of his uncle’s political connection, the police would make no further investigation.

c.In 2013, his parents went to the court to register a case against his uncle. His uncle then came to his house together with his cousin and other 4 or 5 persons. They threatened his father to leave the house.

d.He and his brother went to his uncle’s home, trying to reason with him. However, they were assaulted. His cousin pulled out a gun and fire in the air. His uncle and cousin also brought other people with baseball bat, knife and gun to his house to attack him, his father and his brother. His cousin fired a shot at him. He avoided it. However, his father, himself and his brother were all injured.

e.They had to vacate the house. He and his brother went to Malaysia where they stayed for two years. His parents moved to live somewhere else.

f.  In 2015, he returned to India from Malaysia and lived with his parents. His uncle suddenly came to their house and threatened them, asking his father to withdraw his case.

g.Upon advice from his father, he left India for Hong Kong.

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 29 January 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 attended a hearing before the Adjudicator on 25 June 2018.

9.The Board, by its Decision, rejected his appeal and confirmed the Director’s Decision.

10.The Adjudicator considered the applicant’s evidence and cross-examined on the evidence, pointing out the inconsistencies and implausibility areas, giving him the opportunity of explaining. See paragraph 49-59. The Board finally rejected his evidence in support of claim. It concluded:

“61. Having considered all of the evidence, the Board is not satisfied that the Appellant genuinely fears harm in India on the basis of the alleged land dispute between his father and uncle. It follows that it does not accept that the Appellant has been threatened or harmed by his uncle, cousin or people associated with them or that he will suffer harm from his uncle, cousin or their people upon his return to India.”

Application for leave to apply for judicial review

11.The applicant filed Form 86 dated 31 October 2018 for leave to apply for judicial review of the Board’s Decision.

12.He set out his reasons in his affirmation in support of his application. I shall focus on the grounds in relation to the Board’s Decision below.

1.Procedural unfairness – no legal advice or language assistance for his appeal; Board failed to address the Director’s the uniformed approach of rejecting all claims, but simply adopted the templet basis for its assessment; hearing bundle was given to him shortly before the hearing without translation.

2.Procedural impropriety – cherry-picking the Country of Origin Information without giving reasons why preferred to those adopted.

3.Error/misdirection in law – failure to consider state acquiescence; failed to give allowance of pressure on him for losing his good memory; failed to give proper explanation to reject and deny all the basic facts of his risks of harm and threat back in India.

DISCUSSION

13.The applicant appeared before me and he confirmed that he was free to express himself before the immigration officer and the Board. His lawyer had explained the Director’s Decision to him. The interpreter had explained the hearing bundle to him. His friend had assisted him to understand the Board’s Decision.

14.I put the Board’s findings to him and asked him if he had any comments. He said that he had no comments.

15.It is obvious that the applicant failed to establish his claims because the Board did not accept his evidence of the facts in support of his claim. The Board had given its explanations in its Decision between paragraphs 49 and 59. The Board had pointed out the inconsistencies of his evidence given to the Director and at the hearing, giving him the opportunity of giving explanations. He was unable to explain such inconsistencies. In the Board’s Decision, the Adjudicator had already cautioned herself that the applicant might be under stress or bewildered by his experience and lapse of time. Having taken such precautions, the Adjudicator assessed the credibility of his evidence, which she was entitled to do so. She is entitled to reject the applicant’s evidence if such evidence is obviously no believable or acceptable.

16.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.

17.The Court of Appeal in Re Khan MD Omar [2019] HKCA 803, 19 July 2019 at §18 held that lack of language assistance is not a ground for judicial review.

18.The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22 held that the applicant is not entitled to free legal representation at every stage of the proceedings as he had already had duty lawyer’s service at the screening stage.

19.In light of the above analysis, it is not necessary to address each of the grounds above. They fail to establish a case against the Board’s Decision. The applicant had confirmed that he understood the hearing bundle before the appeal hearing. The Board had given its reasons for its conclusions on the facts of the case. To say that it cherry picked the Country of Origin Information without giving explanation as to why it preferred the information that went against the applicant’s case is only the applicant’s opinion without identifying the issues in question. This ground has nothing to do with the Board’s assessment of his credibility of his evidence. This also applies to the allegation that the Board had not considered state acquiescence, which is irrelevant to the issue of credibility of evidence.

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

CONCLUSION

21.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 22^nd 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