Muniappa Thevar Sankar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1320/2018

[2021] HKCFI 780

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1320 OF 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;  or
	consideration of the documents and oral submissions by the Applicant 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 25 June 2015 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not ask for a hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.

The applicant

4.The applicant is an Indian national.  He came to Hong Kong as a visitor on 5 March 2012.   He overstayed and was arrested by police on 18 May 2012.  He was transferred to the Immigration Department where he lodged his non-refoulement claim.

5.He claimed that if refouled, he would be harmed by Mr. K Panneer Selvam (“KPS”) and his fellows of Dravida Munnetra Kazhagam (“DMK”) as well as Mr. Panneer Selvam (“PS”) and his fellows of All India Anna Dravida Munnetra Kazhagam (“AIADMK”). DMK would harm him because he was a member of AIADMK, an opponent to DMK. PS would harm him because he had an affair with the applicant’s wife.  PS was the President of AIADMK.  Ever since he knew about the affair between PS and his wife, he received calls from someone asking for his whereabouts.  They were PS’s fellows. He was annoyed and afraid. He changed his phone. KPS thought that he had bribed to win the election by PS of the presidency of the locality. He had sent some people to disrupt a gathering he prepared for AIADMK.  They also went to where he lived.  They threw stones at his house. He had to escape with his children. Details of the incidents are set out in paragraph 6 of the Director’s Decision described below.

The Director’s Decision

6.The Director considered his application in relation to the following risks:

a.  risk of torture under Part VII C 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”).

7.By Notice of Decision dated 15 October 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 of harm from the PS or KPS upon his return to India was assessed to be low [12]; that state protection was available to him [16] and internal relocation was an option open to him [17].

8.By Notice of Further Decision dated 12 April 2017 (“the Director’s Further Decision”), the Director rejected his claim on BOR 2 risk as he failed to establish a personal and real risk of being arbitrarily deprived of his life if he returned to India [9].

The Board’s Decision

9.The applicant appealed to the Board against the Director’s Decision and the Director’s Further Decision.  He attended the hearing on 26 May 2017 before the Board.  

10.The Board affirmed the Director’s Decision and Further Decision and dismissed his appeal for the reasons below.

(1)  The Board refused to accept the evidence of the applicant, saying that it was unable to attach any weight to his evidence insofar as it related to his claimed experiences in India. [71]

(2)  The Board went further to say that the applicant had invented the factual basis of his claim, insofar as it related to his involvement with AIADMK, in the hope of strengthening his claim for non-refoulement protection. [75]

(3)  For the reasons above, the Board rejected his claim on all the risks set out in paragraph 6 above. See paragraphs 78-88.

Application for leave to apply for judicial review

11.The applicant filed Form 86 on 9 July 2018 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of his application, he said that he still had political problem. The opposition party people were still looking for him and it would not be safe for him to go back.

DISCUSSION

13.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

14.In Re: Kartini [2019] HKCA 1022, 9 September 2019,the Court of Appeal held:

“13.… Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director), the court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

15.His grounds in support of this application is only his opinion without any evidence or specific in support of it.  It does not assist his application.

16.The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

CONCLUSION

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

Dated the 29^th day of March 2021

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