BADAL SIN v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1832/2018

[2020] HKCFI 1533

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1832 of 2018

Application for Leave to Apply for Judicial Review

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

Following;

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 17 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant is not legally represented and he did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court, by letter, invited the applicant to appear before it in order to explain the above to them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant attended the hearing on 24 October 2019.

The applicant

3.  The applicant is an Indian national. He had come to Hong Kong as a visitor and was allowed to stay until 29 November 2013. He overstayed since 30 November 2013. He was arrested by police on 3 January 2014 and was referred to the Immigration Department on 4 January 2014.

4.  He claimed that if refouled, he would be harmed or killed by his distant paternal uncle, Mulakh Raj (“his uncle”) and his relatives due to a land dispute. This piece of land belonged to the government and the applicant’s family had been occupying it since 1980s.

5.  The relevant incidents took place between 2001 and November 2013, as set out below.

a.In early 2001, his uncle came to his family and asked for the piece of land they were occupying. The applicant’s father agreed to share it with him. But he wanted the whole piece of land for building venue for wedding ceremony. His father refused.

b.In May 2001, there was a meeting between his family and his uncle’s together with other people of his uncle. The meeting ended up with a fight between two families. His father and himself were injured. His uncle threatened to take revenge. He moved to live elsewhere from 2002 to 2004. In 2004, he moved back.

c.At the end of 2007, he met his cousin, his uncle’s son, who slapped his face.

d.At the end of 2010, he met his uncle’s another nephew, who was drunk. They fought each other with bare hands. He was not injured.

e.In August 2013, he met his uncle in his village. He was provoked by his uncle and he broke his uncle’s leg with his wooden stick. He was afraid and he moved to live in other places and he finally came to Hong Kong via China.

The Director’s Decisions

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

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

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 18 January 2016 and Notice of Further Decision dated 10 May 2017, collectively called (“the Director’s Decisions”), the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that his alleged risk of being harmed or killed was low [12]; state protection would be available [17] and internal relocation was an option open to him [18]. He also failed to establish that he would be subjected to BOR 2 risk.

The Board’s Decision

8.  The applicant appealed to the Board against the Director’s Decisions. He attended a hearing before the Adjudicator on 21 February 2018.

9.  By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decisions.

10.  The Board considered the applicant’s evidence and was of the view that whilst it did not dispute that there was a land dispute between two families, it did not accept that the applicant would be in danger of being subjected to torture if he returned to India and state protection would be available to him [54]; that he would not be subjected to persecution [63] and that he failed to establish BOR 2 risk [75].

Application for leave to apply for judicial review

11.  The applicant filed Form 86 dated 4 September 2018 for leave to apply for judicial review of the Board’s Decision.

12.  In his affirmation in support of this application, he did not state that the Board had committed any error in reaching its decision. He simply said that he wanted to stay in Hong Kong until his problems had been solved.

DISCUSSION

13.  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.”

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

CONCLUSION

15.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the intended judicial review. Accordingly, I dismiss his application.

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