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HCAL 2666/2018
[2020] HKCFI 971
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2666 of 2018
BETWEEN
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Sandhu Sukhjinder Singh |
Applicant |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
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 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 (“RHC”), 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 25 July 2019.
2. This is the applicant’s application for leave to apply for judicial review against the decision of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”). I explained to him that Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, the Court of Appeal held that he should only apply for leave to apply for judicial review against the Board only. The applicant agreed to delete the Director as the respondent as the intended judicial review should be against the Board’s Decision. Leave was given to the applicant to make the amendment to Form 86.
The applicant
3. The applicant is an Indian national. He arrived in Hong Kong on 30 January 2016 illegally from Shenzhen by boat. He was arrested by police on 30 Januarty 2016. He raised non-refoulement claim on 3 February 2016.
4. His reason for his application is that if refouled, he would be harmed or even killed by Harmeet Kaur’s family, due to their objection to his relationship with her.
5. The applicant claimed that in January 2014, he met Harmeet in a friend’s party and they met each other since then. In July 2015, they decided to get married. Harmeet’ family, which was rich, disapproved of it as his family was poor. Her brothers threatened to harm and torture him if he married their sister. He did not see Harmeet anymore and her brother ceased contacting him. However, he communicated with Harmeet again. This was found out by her brothers. In November 2015, they threatened to kill him. He ceased communicating with Harmeet. They stopped calling him. However, he feared for his safety. On 18 January 2016, he left India for Hong Kong.
The Director’s Decision
6. The Director considered his application only in relation to the following risks:
a. risk of torture under Part VIIC of the Immigration Ordinance, Cap 115, (“the Ordinance”) (“Torture risk”);
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 under RC”).
7. By Notice of Decision dated 29 May 2018 (“the Director’s Decision”), the Director rejected his claim for the reason that his claim was unsubstantiated.
The Board’s Decision
8. The applicant appealed to the Board and he attended a hearing before the Adjudicator on 7 September 2018.
9. By Decision dated 29 October 2018 (“the Board’s Decision”), the Board refused his appeal and confirmed the Director’s Decision.
10. The Board considered the applicant’s evidence. It did not challenge his factual evidence. Applying the relevant statutory provision and the Convention to those facts, it considered that the applicant failed to establish that he would be subjected to torture if he returns to India, his case being not one under BOR 2 risk or Persecution risk.
11. It was on the above bases the Board rejected his claim.
Application for leave to apply for judicial review
12. In his Form 86 dated 23 November 2018 under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave to apply for judicial review of the Director’s Decision and the Board’s Decision respectively.
13. The applicant relied upon the grounds below against the Director’s Decision and the grounds against the Board. His application for leave to apply for judicial review should be against the Board only, I shall focus his grounds against the Board’s Decision.
1. The Board was unfair and wrong to reach its decision. The right to life must be protected.
2. There was an example where the applicant was refouled and was killed.
3. Corruption and incompetency of the administration in his country is serious.
DISCUSSION
14. The applicant appeared before me. He confirmed that he had been able to speak freely and tell his stories fully to the Immigration officer and the Adjudicator. His lawyer had explained the Director’s Decisions to him. His friend had assisted him with the hearing bundle and the Board’s Decision.
15. The Court of Appeal held in Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14
“13. 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 makers….
14. 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. Ground (1) fails as it is only his opinion, which was not supported by any evidence.
17. Ground (2) fails too because there is no evidence to show how the example mentioned happened. His case has to be considered separately and independently.
18. Ground (3) situations are set out in the Country of Origin Information (“COI”), which the Board had considered. The COI had also said that India provided state protection to its citizens. There is no evidence to show that the government was involved in his case. This ground does not sustain.
19. The applicant fails to show that he has a reasonable chance of success in his proposed judicial review.
CONCLUSION
20. 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.
Dated the 29th day of May 2020
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(Mike Mak) |
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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: |
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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)). |
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Sent to the Applicant
on 29/5/2020
Sandhu Sukhjinder Singh
Applicant’s ref. no:
Nil. |
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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 29/5/2020
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 11996/18/6/175/IN2394
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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