Gawade Amol Bhagawant v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2784/2018

[2021] HKCFI 2152

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2784 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

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

Following;

	consideration of documents only;  or
	consideration of documents and Applicant being absent 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 3 December 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.  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 a citizen of India.  He came to Hong Kong as a visitor on 17 April 2015.  He overstayed and surrendered to the Immigration Department on 4 May 2015.  He lodged non-refoulement claim with the Immigration Department by way of written signification on 9 September 2015.

5.He claimed that if refouled, he would be harmed or killed by his clients who had deposited money with the private society bank, for which he worked.  His boss fled with the money and was nowhere to be found. His clients pursued him for the return of the money.  They had gone to the bank and vandalized his belongings there.  He was hit by them with wooden sticks.  As a result, he had to stayed in the hospital for 6 days.  He had reported the matter to police, which took no action.  He had to flee from India for Hong Kong as advised by his parents.  Details of his story are set out in paragraph 8 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 30 January 2018 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.  The Director found that there was no ground for believing that he would be subjected to any real risk of being harmed or killed if he returned to India [14]; that state protection was available to him [18] and that internal relocation was an option open to him [26].

The Board’s Decision

8.The applicant appealed against the Director’s Decision.  He attended the hearing before the Board on 14 September 2018.

9.By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision.  The Board did not challenge his evidence on the facts.  However, the Board considered that the monetary dispute was between his boss and his clients and there was no evidence to show that his clients intended to kill or harm him seriously and the treatment he had received from his clients did not fall within the meaning of torture under section 37U (1) of the Ordinance [37-41]; that state protection would be available to him [42]; and that for the same reasons, his claim under BOR 2, BOR 3 and Persecution risks also failed; and that internal relocation was an option open to him [50-55].

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 6 December 2018 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, he said that the Board had disregarded the dangers and threats he faced in his country.

DISCUSSION

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

13.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.”

14.His ground in support of this application does not assist his application.

15.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.

16.There is no evidence that shows that the applicant has any reasonable prospect of success in his intended judicial review.

CONCLUSION

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

Dated the 27^th day of July 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

Form CALL-1