Kumar Pradip v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 1904/2018

[2020] HKCFI 1762

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1904 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 20 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not ask for a hearing. He was invited to court for a hearing so that he may give further information for his case. He attended the hearing.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 was amended 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 21 April 2015 on the strength of his passport. But he was denied entry. He lodged a non-refoulement claim by way of written representation by his legal representative.

5.He claimed that if refouled, he would be harmed or killed by Akshay Yadav (“Yadav”), who had won the General Election of 2014 and became member of the India Parliament for Firozabad Constituency of Samajwadi Party (“SP”) and his associates because he refused to vote and work for him in the election campaign, Also, he had been detained and ill-treated by four police officers at Etmaduala police Station when he lodged a police report against Yadav.

6.The applicant claimed that in June 2011, his home was burgled by some gangsters, whom he believed to be Yadav’s people in revenge for his refusal to assist him in the election. He reported the burglary to police and he mentioned that Yadav might be involved. He was detained in custody and beaten up by police officers by using belts and wooden sticks all over his body. The police officers then told him that if he reported against Yadav again, they would go to his house and to do destruction. He told him to withdraw his case. He was then forced to sign a paper to withdraw his complaint against Yadav. He was discharged.

7.A few days later, whilst he was travelling on a motorized rickshaw, a motor car hit his rickshaw from behind. He was injured at his left thigh, forehead, face and two left fingers. He was taken to a nearby clinic. He believed that those who had knocked him down belonged to Yadav as he recognized some of them. In another incident in 2013, Yadav’s people came to his house and shouted. He went out to meet them. They accused him of making report to police about Yadav having murdered someone. He denied, but they did not believe him. One of them was holding a pistol at this head and he fired a warning shot. They were about to drag him into a vehicle when his neighbour came out. They went away.

8.He moved to live in his friends’ places. He felt insecure and finally left India for Hong Kong.

The Director’s Decisions

9.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”).

10.By Notice of Decision dated 24 July 2015 (“the Director’s Decision”), the Director refused his claim on Torture risk, BOR 3 risk and Persecution risk for the reason that his claim was not substantiated. The Director found that the level of risk that he returned to India was low [11]; that state protection would be available to him [16] and that relocation was an option open to him [17].

11.By Notice of Further Decision dated 20 December 2016, the Director found that he was unable to establish BOR 2 risk.

The Board’s Decision

12.The applicant appealed to the Board against the Director’s Decisions. A hearing was fixed on 14 February 2017. But he was absent at the hearing. The Board directed that he should give an explanation in writing for his absence. He failed to reply. The Board then proceeded to consider his case on the evidence available to it.

13.By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decisions.

14.The Board considered the applicant’s evidence and found that the applicant’s evidence was inconsistent [36-38]; that state protection was available to him [49] and that internal relocation was an option open to him [50]. The Board concluded that the credibility of his evidence that he was tortured by police or the knocking down of his motorized rickshaw was not acceptable [51]. Even if Yadav was involved, motivation of Yadav harming him was very low.

Application for leave to apply for judicial review

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

16.In his affirmation in support of his application, he did not set out any grounds in support of his application. Nor did he say that the Board erred in making its decision.

DISCUSSION

17.The applicant appeared before me. He explained that at the relevant time, he was being detained in the Castle Peak Bay Immigration Centre (CIC), where he was interviewed by the immigration officer with the presence of his duty lawyer. His lawyer had explained the Director’s Decision to him. His friend had also explained the Board’s Decision to him. He had no complaint against the Board, nor any comments on the Board’s findings above.

18.There is no evidence to show that the Board erred in the finding of the facts or the application of the laws to his case.

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

CONCLUSION

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

Dated the 31^st 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