Ram Singh v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL2980/2018

[2020] HKCFI 1750

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2980 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.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 21 August 2019.

2.I have noted that in Form 86, the applicant asked for leave to apply for judicial review against the respective decisions of the Director and the Board. However, in Re: Moshsin Ali, [2018] HKCA 549 (CACV 54/2018), the Court of Appeal held that the Director’s Decision is not susceptible to judicial review once an appeal to the Board is pursued.

3.The applicant agreed to amend Form 86 by deleting the Director as the respondent. Leave was granted to him to do so. Form 86 was therefore amended accordingly.

The applicant

4.The applicant is an Indian national. He came to Hong Kong from Shenzhen on 31 August 2015 by boat. He surrendered himself to the Immigration Department on 2 September 2015.  On 16 October 2015 he lodged a non-refoulement claim.

5.In support of his claim, he said that if refouled, he would be harmed or killed by his cousin Avtar Singh(“Avtar”) because of a land dispute.

6.The applicant had inherited a piece of farmland from his father. Avtar owed another piece of land adjacent to his land. Avtar wanted to expand his farm, so he offered to buy the applicant’s land at 2.5 lakhs whereas the market price should be 15 lakhs. The applicant refused. Between 2014 and 2015, Avtar brought 4 or 5 men to his house once a week, asking the applicant to sell the land him. The applicant refused. In June 2015, Avatar brought four or five men armed with long wooden sticks to his house, making the same demand. The applicant, again, refused. Avtar slapped his face several times. He also told the other men to assault the applicant. They hit him with sticks. The applicant was injured with a fractured thumb, a bleeding nose and bruises over his body. It took 15 days for him to recover. They threatened to kill him before they left. He had attempted to report this matter to police, which refused to register his complaint having known that he complained against Avtar. He was advised by an agent to leave India for Hong Kong. He took the advice.

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 25 January 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.

The Board’s Decision

9.The applicant appealed to the Board against the Director’s Decision and he attended a hearing before the Adjudicator on 5 October 2018. He was legally represented at the hearing.

10.By Decision dated 13 December 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.

11.The Board considered the applicant’s evidence and decided not to attach any credence to any of the statements or claims the applicant made to the Director and concluded that he was not a witness of truth [56]. It came to such conclusions because when the Adjudicator told him that he would like to have details in respect of 12 issues from the statements and explanation in relation to some inconsistencies [52 & 53], having received legal advice from his lawyer, the applicant insisted that he would not answer any questions that might be put by the Board to him, knowing that in so doing the Board might take this into consideration in assessing the credibility of his evidence.

Application for leave to apply for judicial review

12.He filed Form 86 dated 27 December 2018 for leave to apply for judicial review of the Board’s Decision.

13.He attached to Form 86 grounds or reasons in support of his application, which are summarized below:

1. Misdirection in the law – that he had to have experienced torture in the past in order to establish substantial grounds to believe that there was a risk of torture in the future.

2. Procedural impropriety/unfairness – failing to carry out sufficient research and inquiry into the Country of Origin Information (“COI”) on updated materials and just relying on outdated materials; failed to obtain requisite documents in support of his case; failing to provide the hearing bundle on time with translation, making him confused at the hearing; failing to give screening for the BOR 2 risk assessment; failing to call for psychological and psychiatric evaluations and applying the incorrect standard of proof.

3. Irrationality – cherry-picking COI and relying upon outdated materials; failing to find fact whether there was a consistent pattern of gross, flagrant of mass violation of human rights as required under Article 3(2) of CAT; failing to assess state protection or extended meaning of state protection; failing to consider relevant information or considered irrelevant information to his prejudice.

DISCUSSION

14.The applicant appeared before me and he confirmed that he was free to express himself before the immigration officer and the Adjudicator. His lawyer had explained the Director’s Decision and the Board’s Decision to him.

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

16.It is obvious that the Board did not accept his factual evidence in support of his claim. He had no factual basis for his claim.

17.Those grounds in support of the applicant’s application are irrelevant to the finding of facts by the Board. They do not assist his application.

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

CONCLUSION

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

Dated the 30^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