Case Document

100%Judiciary

HCAL 849/2019

[2023] HKCFI 1304

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 849 of 2019

BETWEEN
	Madhashiya Vinay	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

Application for Leave to Apply for Judicial Review

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

Following;

consideration of documents only; or

cconsideration 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 21 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Second Decision as described below (“the Board’s Second Decision”).

2.The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, I shall deal with her 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 attempted to enter Hong Kong on 25 February 2016 and was refused permission to land. One the same date, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by the members of Samajwadi Party (“SP”).

5.According to the applicant, he and his family members were long-term supporters of the Bharatiya Janata Party (“BJP”). The village head of the applicant’s home village was Ramauti Devi (“RD”) and her husband was Bharat Yadav (“BY”). They were both supporters of SP. The applicant’s dispute with SP started in the election in October 2015 when he was working for BJP and soliciting votes for his party. However, he and his peers found out that the SP were using bogus votes to seek RD’s reelection. The applicant complained to the police. That night, the applicant was approached and assaulted by the SP members. Two months later, the applicant was again assaulted by BY and some other SP supporters. Out of fear, the applicant fled to other villages and eventually came to Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 11 May 2016 by the Director (the “Director’s First Decision”).

The Director’s Decisions

6.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”).

7.By way of the Director’s First Decision, the Director dismissed the applicant’s claim on Torture risk, BOR 3 risk and Persecution risk as the level of risk of harm was assessed to be low. In elaboration, the Director found that (i) the conducts of the alleged enemies did not show a real intention to materialize the death threats [12]-[13]; (ii) state protection would be available to him [14]; and (iii) internal relocation was a viable option [15].

8.For reasons set out in the Notice of Further Decision dated 13 April 2017, the Director also found that the applicant’s right to life would not be violated and dismissed his claim on BOR 2 risk (the “Director’s Second Decision”).

The Board’s Decisions

9.The applicant first appealed the Director’s First Decision to the Board. On 15 August 2016, the Board conducted an oral hearing for his appeal, during which he testified [9].

10.Having considered all the evidence, the Board made the following findings. First, the applicant’s evidence on the bogus votes and his subsequent report to the police, as well as the police’s reactions, were implausible [37]. Second, it was not convinced that the applicant was singled out by the SP as a target; that the SP was the ruling party at the material time; that the government was involved in this dispute; that he had suffered any injuries attaining to minimum level of severity; and that the government would not offer protection [41]. In any event, internal relocation was a viable alternative [62]-[69].

11.For the above findings, on 31 August 2016, the Board rejected the applicant’s claim on Torture risk, BOR 3 risk and Persecution risk and dismissed his appeal against the Director’s First Decision (the “Board’s First Decision”).

12.Insofar as the applicant’s appeal against the Director’s Second Decision was concerned, the Board determined that it could be fairly disposed on paper without an oral hearing [7]. It took into account the new document submitted by the applicant in support of his claim on BOR 2 risk. In that, the applicant brought a new claim that he learnt that his brother was attacked by BY with a knife. However, in light of the findings made in the Board’s First Decision, the Board found that the applicant’s claim on BOR 2 risk was equally unsubstantiated. Thus, by way of the Board’s BOR 2 Decision, it also dismissed the applicant’s appeal against the Director’s Second Decision.

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

13.The applicant has filed Form 86 dated 27 March 2019 for leave to apply for judicial review of the Board’s Second Decision.

14.In his affirmation in support of his application, the applicant did not set out any specific ground.

DISCUSSION

15.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).

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

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 Board had considered the Board’s First Decision, which deals with the main facts of the applicant’s claim. It had also considered the additional facts raised by the applicant. It had come to its conclusion to dismiss the applicant’s appeal against the Director’s Second Decision. There is no valid ground from the applicant to challenge the Board’s Second Decision.

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

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

CONCLUSION

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

Dated the 24^th day of May 2023

(M.O. WONG)(Ms)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 24/5/2023 Madhashiya Vinay Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 24/5/2023 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 3757/16/5/175/IN864 & BOR 481/17/4/130/IN131 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 688/16 (T1S96) & RBCZ/9000365/16 (Formerly RBCZ/64/16) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)