Achhada Dilip G v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 2368/2018

[2022] HKCFI 3195

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2368 of 2018

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.The applicant applies for leave to apply for judicial review of the Decision dated 15 October 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not request an oral 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 Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant is a national of India. He first entered Hong Kong as a visitor on 3 May 2007 but was later arrested and convicted for export related criminal offences on 6 August 2007. He was sentenced to four months’ imprisonment and was discharged on 26 October 2007. On 9 November 2007, he lodged a torture claim. On 4 August 2008, he married a foreign domestic helper in Hong Kong but the marriage was dissolved on 27 February 2010. On 18 April 2010, he solemnized another marriage with his ex-wife who was a Hong Kong resident. They had a son born in May 2010. He withdrew his torture claim on 29 June 2010 and his ex-wife withdrew his application for dependent visa on 5 July 2010. The applicant returned to India on 26 July 2010.

5.On 13 November 2010, he entered Hong Kong again under a different name and was permitted to stay until 27 November 2010. His stay was subsequently extended in light of his requests to take care of his ex-wife and son. On 15 March 2011, he submitted an application for dependent visa. In the ensuing months, he had been back and forth between Hong Kong and India. In September 2011, his ex-wife gave birth to their daughter.

6.He last entered Hong Kong on 1 October 2011 and was permitted to stay until 15 October 2011. On the date of entry, he was arrested by the police for fraud and other criminal offences. He was charged, convicted and sentenced for the above offences. On 23 November 2013, he lodged a non-refoulement claim. His second marriage was subsequently dissolved and his application for dependent visa to join his son would not be considered by the Immigration Department. On 9 April 2018, the Duty Lawyer Service informed the Immigration Department that he intended to reopen his torture claim. On 13 April 2018, the Director acceded to his request.

7.The applicant’s claimed fear of harm was from several creditors. In 2000, the applicant borrowed a loan for his import and export business. His problem started in 2007 when his goods were seized by Hong Kong and India customs for bearing forged trademarks. As he defaulted the loan payments, he hid in Hong Kong. In 2010, the applicant returned to India to renew his passport. He was kidnapped and assaulted by the creditors’ people. He claimed that his parents were also threatened and assaulted by the creditors. Out of fear, the applicant decided to stay in Hong Kong for protection.

8.While in Hong Kong, the applicant was also threatened by the creditors’ friend. In addition, the applicant wished to stay in Hong Kong to take care of his family as his ex-wife and daughter both suffered from psychiatric problems. Details of his claim are set out at paragraph 10 of the Notice of Decision dated 30 April 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

9.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“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 way of the Director’s Decision, the Director dismissed the applicant’s claim as his claimed fear of harm from the creditors was groundless. In elaboration, the Director found that (i) the absence of past ill-treatments indicated an unlikelihood of future risk of harm [24]-[27]; (ii) state protection would be available to him [28]; and (iii) internal relocation was a viable alternative [29].

The Board’s Decision

11.The applicant appealed the Director’s Decision to the Board. On 19 July 2018, the Board conducted an oral hearing for his appeal. The applicant’s second wife submitted a witness statement for the applicant’s claim [58]-[60]. Her statement was in relation to the situation in Hong Kong and the previous torture claims made by the applicant [60].

12.The Board first noted that the applicant’s plea to stay in Hong Kong to take care of his family was not within the scope of the present appeal [26]. It then considered the material aspects of the applicant’s claim. The Board observed that the applicant conceded that the alleged kidnap incident had little relevance to his non-refoulement claim as he stated that they kidnapped him because they thought he was wealthy [44]-[50]. The Board also noticed that the applicant returned to India in 2010 when it was not long after he defaulted the loan payments [64]. Despite the second wife claimed that her family was harassed by some South Asians, she did not state the reason for such harassments [65]-[67]. In addition, the Board found that the applicant only had little knowledge about the loan sharks and the loan. Most of the alleged actions of the loan sharks were based on hearsay information [68]-[71]. Further, the Board considered the loan sharks’ actions and found that it would not be in their interests to kill the applicant [72]-[73]. Meanwhile, on the applicant’s evidence, the loan sharks’ activities were localized and he was free to travel around in the past ten years [79]-[81]. Besides, the Board also viewed that the loan sharks were not state actors [105] and police protection would be available to him [84].

13.For the aforesaid reasons, the Board rejected the applicant’s claim and dismissed his appeal.

Application for leave to apply for judicial review of the Board’s Decision

14.The applicant has filed Form 86 dated 26 October 2018 for leave to apply for judicial review of the Board’s Decision.

15.In his affirmation in support of his application, the applicant had submitted a jumble of grounds of over 40 pages, most of which are irrelevant to his case. I shall, nevertheless summarize the relevant grounds below.

(1)  Irrationality: failing to consider state acquiescence; failing to consider state protection in India; failing to consider relevant information or selectively placing weight on irrelevant information; failing to consider a consistent system of human right violations.

(2)  Procedural impropriety: insufficient enquiry; failing to provide sufficient reasons; failing to consider the country of origin information (“COI”) in relation to his case; failing to call for psychological and/or psychiatric report for evaluation and applying the incorrect standard of proof; no reasonable basis for rejecting his credibility and no proper basis for considering internal relocation.

(3)  Irregularity: there was a different decision-maker other than the immigration officer as the decision-maker.

DISCUSSION

16.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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

18.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.”

19.The grounds set out in paragraph 15 above are mostly the applicant’s bare assertions or opinions without evidence in support. The Board did not call for psychological or psychiatric report for evaluation because these issues were never raised before the Board by the applicant. The Board acts as an appeal tribunal from the decisions of the immigration officer or the Director. The adjudicator has to be a different person. There is nothing amiss about this arrangement. All the grounds are not valid to challenge the Board’s Decision.

20.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.

21.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

22.I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 18^th day of October 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