SONI PRASHANT v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 2883/2018

[2019] HKCFI 2890

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2883 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 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”).

The applicant

2.  The applicant is an Indian national. He came to Hong Kong as a visitor in January 2016 and was allowed to stay until 24 January 2016. He overstayed and surrendered to the Immigration Department on12 February 2016. He lodged his non-refoulement on 12 April 2016. A removal order was made against him on 21 September 2017.

3.  His reason for his application is that if, refouled, he would be ill-treated by two of his business suppliers, Rameshwer Soni and Kamal Soni (“R & K”) because they believed that he had stolen their jewelries.

4.  In his statements given to the Director and the Board, he claimed that he received jewelries from R & K and he lost them whilst he was in a hotel. That took place on 13 June 2015. He had reported the loss to R & K. He had reported to the police. R & K had on three separate occasions sent people to his home to demand return of the lost jewelries. He was unable to return them. They assaulted him with hands. But on one of the occasions, they were angry that he had reported the matter to police and they hit him with sticks. He suffered bruises on his body. His family was also threatened by R & K. He moved to his friend’s place. His friend advised him to leave India for Hong Kong. He took the advice.

The Director’s Decisions

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

a.     Torture 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”).

6.  By Notice of Decision dated 10 May 2018 (“the Director’s Decision”), the Director rejected his claim for the reason that his claim was unsubstantiated.

The Board’s Decision

7.  The applicant appealed to the Board and he attended a hearing before the Adjudicator on 14 September 2018.

8.  By Decision dated 11 December 2018 (“the Board’s Decision”), the Board refused his appeal and confirmed the Director’s Decision.

9.  The Board considered the applicant’s evidence. It did not challenge his evidence. However, it found that it could not accept the applicant’s allegation that he would be subjected to torture or ill-treatment if he returned to India because his complaint of R&K’s threat was finally accepted by police in India. After investigation, the police also suspected that he had stolen the jewelries. It therefore did not accept that the applicant had established substantive ground that he would be subjected to torture if he returned to India. [48] For the same reasons, he rejected the applicant’s claim in respect of BOR 2, BOR3 and Persecution under RC. It further found that internal relocation is an option open to the applicant. [56-60]

10.  In his Form 86 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.

11.  In his affirmation in support of his application dated 17 December 2018, the applicant relied upon the following grounds:

1.     he was not provided with language assistance;

2.     he was not provided with legal assistance for this application – breach of high standard of fairness and he was unable to have the reasoning;

3.     the Director rejected his claim on a uniform approach and a template basis;

4.     the Adjudicator did not give any explanation why he was not satisfied that he would face harm upon return to India;

5.     the Board erred about state protection, which was not available to him; and

6.     internal relocation is not a viable option to him; the Board had not taken into consideration the difficulties he might have to face in other cities.

DISCUSSION

The Director’s Decision

12.  The Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap. 115 in relation to the powers of the Director and the Board, decided:

“45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”

13.  The applicant’s application for leave to apply for judicial review of the Director’s Decision therefore fails in limine. I dismiss his application.

The Board’s Decision

14.  The applicant appeared before me. He confirmed that he was able to express and tell his story to the Immigration Officer and the Adjudicator freely and fully. He was able to read English himself. His lawyer had explained the Director’s Decision to him. He could read the Board’s Decision himself.

15.  The Board did not challenge him on the facts that he was being chased by the supplier for the return of the jewelries and that he might have been beaten up by the supplier’s people and that the police had made investigation into the matter and they suspected him of the loss of the jewelries. It is therefore a question of the application of the relevant statutory provisions and the Convention to those facts.

16.  Ground (1) is inconsistent with what he said before this Court. He admitted that he could read English himself.

17.  He does not have the absolute right of free legal representation at every stage of the proceedings as he had already had legal representation at the screening stage. Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22. Ground (2) fails.

18.  Grounds (3), (5) and (6) are his opinions without any evidence in support of them. They do not stand.

19.  Grounds (4) is not true. The Board’s Decision has set out the reasons for its conclusion that he would not be subjected to any harm back in India. That fact that police had made investigation into the matter is a clear indication that police will provide protection for him.

20.  The applicant fails to show that he has a reasonable chance of success in his proposed judicial review.

CONCLUSION

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