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

HCAL 760/2019

[2022] HKCFI 707

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 760 of 2019

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 26 October 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”). The applicant’s application is late for over 2 years, I shall deal with this issue below.

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 national of India.  He entered Hong Kong on 5 August 2006 as a visitor but did not depart after his limitation of stay expired.  He had overstayed since 20 August 2006.  On 21 August 2006, he was arrested by the Hong Kong police.  On 10 January 2007, he lodged a torture claim which was rejected on 19 September 2013.  On 8 February 2014, he lodged a claim under Cruel, Inhuman or Degrading Treatment or Punishment (“CIDTP”).  Upon the commencement of the unified screening mechanism, the applicant’s CIDTP claim was taken as a non-refoulement claim and assessed in all applicable grounds except the torture risk[1].

5.The applicant’s claim was made on the basis that, if refouled, he would be harmed or killed by his father’s three business partners (“the Partners”) because of a default in loan payments.  According to the applicant, his father and the Partners all belonged to a political group called Dravida Munnetra Kazakam (“DMK”).  They formed a partnership which his father had 50% shares while the Partners 30% and the rest of 20% were left in the partnership.  The applicant’s father borrowed the money from the Partners to start the business. However, in 2001 or 2002, the business failed and his father defaulted the repayments.  Later, the Partners switched their political affiliation to All India Anna Dravida Munnetra Kazhagam (“AIADMK”).  In light of his father’s default, in the end of 2001, the Partners came with some men to destroy the applicant’s house and injured his father.  The complaint to the police was of no avail.  In December 2002, the applicant’s father committed suicide. Consequently, the applicant became the Partners’ target for the loan payment. He encountered several attacks and suffered injuries from those attacks.  In 2004, the Partners filed false cases against the applicant, resulting in his detention in the police station where he claimed to be tortured by the police officers for a guilty plea.  Out of fear, he fled to other villages but was still chased by the Partners.  Eventually, he fled to Hong Kong for protection.  The details of the applicant’s claim were set out at paragraph 8 of the Notice of Decision dated 31 January 2018 by the Director (“Director’s Decision”) and paragraphs 7 to 15 of the Board’s Decision described below.    

The Director’s Decision

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

a.  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”);

b.  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

c.  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 way of the Director’s Decision, the Director refused his claim.  The Director found that the level of risk of harm upon the applicant’s refoulement was assessed to be low because (i) the injuries sustained by the applicant failed to attain a minimum level of severity and the dispute was a private one without state involvement [21]-[24]; (ii) state protection was available to him [25]-[28]; and (iii) internal relocation was an option open to him [29]-[34]. 

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  The Board scheduled an oral hearing on 20 September 2018 for his appeal.  However, the applicant was absent from the hearing.  Having considered all the circumstances, the Board proceeded to consider his appeal on paper [3]-[6] after statutory notice under section 15 Schedule 1A of the Ordinance having been sent to the applicant without response from the applicant.

9.The Board found that it was unable to determine the applicant’s credibility due to his absence [23].  Nevertheless, it considered that the applicant’s account was untruthful in light of the applicant’s immigration history, the fact that he was a repeated offender [29]-[37], as well as the incredulous nature of the material aspects of his claim.  For example, the Board found that the applicant did not provide any documentary proof for the business and the debt [40]-[41].  It also found that there was no objective evidence for the Board to assess the frequency, nature, and severity of the injuries [42]-[43].  Insofar as the threats from the Partners were concerned, the Board found that there was no evidence suggesting that the Partners could utilize the resources of AIADMK to hunt the applicant down [44].  In the premises, the Board rejected the applicant’s evidence [47]-[50]. 

10.Based on the aforesaid findings and the lack of credibility on the applicant’s evidence, the Board found that the applicant’s claim was not established.  It further considered that, even if the alleged debt was substantiated, it was only a private dispute between the applicant and the Partners [58].  In any event, state protection and internal relocation were available to the applicant [59]-[64]; [76]-[80].  Therefore, the Board dismissed his appeal.  

Application for leave to apply for judicial review

11.The applicant filed Form 86 on 19 March 2019 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of his application, he said that, for the reasons in support of his claim, his life would be in danger if he returned to India.

DISCUSSION

13.As mentioned in paragraph 1, the applicant’s application is late. The Court has to consider the length of the delay, the reasons for the delay, the prospect of the intended application and the prejudice to the putative respondent if extension of time is granted. Also, the Court should not grant extension for a hopeless application. See AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 and Re Adumekwe Rowland Ejike [2019] HKCA 702, §19. I shall, therefore first consider the merit of the applicant’s case.

14.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

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

16.As the applicant was absent at the hearing before the Board, the Board had assessed the evidence before it and found that the applicant’s evidence was incredibility, giving reasons in support of its findings. The Board is entitled to make such findings as there is no explanation for the applicant’s absence up to date. The Board further found that the applicant’s case is a private monetary dispute between himself and the Partners without any state involvement. State protection is available to him.

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

“13(1).… …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.”

18.The applicant has not raised any valid ground to challenge the Board’s Decision.

19.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.

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

CONCLUSION

21.I therefore refuse to extend time for the applicant to apply for leave to apply for judicial review.  Accordingly, I dismiss his application.

Dated the 21^st day of March 2022

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