CHOPRA AMIT v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1794/2018

[2020] HKCFI 1373

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1794 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 did not attend the hearing on 21 November 2019. I shall proceed to consider his application on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, the Court, on its own motion, amended Form 86 by deleting the Board and replaced it by Director of Immigration (“the Director”) as interested party.

The applicant

4.  The applicant is an Indian national. He came to Hong Kong on 30 November 2004 as a visitor and was allowed to stay until 7 December 2004. He overstayed. He applied for extension of stay but was rejected. During his period on recognizance, he committed a number of offences and was imprisoned. He lodged a non-refoulement claim on 17 September 2013.

5.  He claimed that if refouled, he would be harmed or even killed by the boss and an employee called Sonu of a money lending company named Chawla Financer because of his default in the repayment of his loan from the money-lender.

6.  He was persuaded by an agent to borrow 300,000 Indian Rupees from the money-lender for the fee of the agent to take him overseas to get a job for better pay. The agent received the money and took him to China and Hong Kong. The agent then disappeared. He was unable to repay the loan. Sonu went to his mother in India to look for him. His mother advised him not to return to India. Sonu had attempted many times to disturb his family in India for his whereabouts. His mother reported this matter to police. The police did not take action. He remained in Hong Kong as he feared that he might be harmed or killed if he returned to India. He made a refugee application with the United Nations High Commissioner for Refugees in Hong Kong in 2005 or 2006. His application was refused.

The Director’s Decisions

7.  As he had made a torture claim protection and was refused, 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”).

8.  By Notice of Decision dated 4 March 2016 and by Notice of Further Decision dated 29 December 2017, the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that the risk of harm if he returned was low [17]; that state protection was available to him [20] and internal relocation was an option open to him [23]. In the Director’s Further Decision, the Director found that he failed to establish BOR2 or BOR13 risks.

The Board’s Decision

9.  The applicant appealed to the Board against the Director’s Decisions. He attended a hearing before the Adjudicator on 6 March 2018.

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

11.  The Board considered the applicant’s evidence and found that the applicant was not a credible witness [5 & 6]. The Board had raised a lot of questions in paragraph 7 of the Board’s Decision, which it took to be no answers. But those questions seem not to have been put to the applicant for answers. They are rhetorical questions raised by the Board in its deliberation of the case. The Board also held that relocation was an option open to the applicant [14].

Application for leave to apply for judicial review

12.  The applicant filed Form 86 dated 31 August 2018 for leave to apply for judicial review of the Board’s Decision.

13.  In his affirmation in support of his application, he submitted that he was not legally aided in his application for judicial review. He also complained that he was not given legal aid for his BOR 2 risk assessment.

DISCUSSION

14.  The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22 held that the applicant is not entitled to free legal representation at every stage of the proceedings as he had already had duty lawyer’s service at the screening stage.

15.  In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them.  The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

16.  The rhetorical questions should have been put to the applicant for his answers. However, I do not find that those questions relate to the finding of the facts by the Board. Nor would they affect the option of internal relocation open to him.

17.  The applicant is unable to show that he has reasonable prospect of success for his intended judicial review.

CONCLUSION

18.  I therefore refuse to grant leave to the applicant to apply for leave for 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