Rajendran Sathiyaseelan v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2771/2018

[2021] HKCFI 2183

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2771 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 22 November 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 on 2 May 2015 as a visitor.  He overstayed and surrendered to the Immigration Department on 18 May 2015. He  lodge non-refoulement claim with the Immigration Department by written signification dated 27 October 2015.

5.He claimed that if refouled, he would be harmed or killed by Mr. Simbu Devan (“Simbu”) because he had had a fight with him in a marriage ceremony in India.  Simbu brought his people to his friend’s marriage ceremony where they said that his friend was of a lower caste and could not use the hall, which was for the upper caste.  He and his father intervened.  His father was seriously injured.  He had hit Simbu with his fist. Simbu was a powerful figure in the locality as he was closely connected with a member of the parliament.  He left the scene and hid himself in another village, in the forest and in a boat in order to avoid Simbu.  The applicant’s father had reported the matter to police.  But the police officers refused to take on the case once they learned that the complaint was against Simbu.  Simbu had threatened that he would kill the applicant if he found him.  He had to leave India.  Details of his story are set out in paragraph 7 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 24 April 2018 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.  The Director found that the level of risk of him being harmed or killed by Simbu if he returned to India was assessed to be low [11]; that state protection was available to him [21] and internal relocation was an option open to him [24].

The Board’s Decision

8.The applicant appealed against the Director’s Decision.  He attended the hearing before the Board on 26 September 2018.

9.By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision.  The adjudicator had a rather protracted cross-examination of his evidence and found that the applicant had given inconsistent evidence in his statement and in his oral evidence.  Having considered his evidence, the Board came to a conclusion that it did not accept all his factual evidence in support of his claim such as his family being involved in an altercation with Simbu and his people at a marriage ceremony, his father being slashed with knives and that he had gone into hiding himself in various places, including the forest and the boat and that he left his home village and India in fear of Simbu or anyone else [82].  The Board went further to say that it did not accept that the applicant feared returning to India for the reason he had claimed, or for any other reason.  The Board did not accept that Simbu or other people associated with him would harass, torture, harm or kill the applicant for any of the reasons he had claimed, or for any other reasons, if he returned to India [83].  For those reasons, the Board rejected his claim on those risks in paragraph 6 above.

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 5 December 2018 to apply for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, he submitted the hearing bundle.  However, he attached his grounds to Form 86.  He said that the Board’s Decision was unfair and unreasonable; that the Board had not given him sufficient time to arrange relevant evidence; that his right to life must be protected so that he would not be killed by his enemies if he returned to his country, India and that corruption was serious in the administration of India.

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 grounds in support of this application are only his opinions and comments without any evidence in support of them and they do not assist his application.  Up to date, he has not been able to say what evidence he should have prepared for the Board.  The Board had found that he had no factual basis in support of his claim.

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 5^th day of August 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