SUBHASH CHANDER v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1694/2018

[2020] HKCFI 1745

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1694 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 16 August 2018 of the Torture Claims Appeal Board/Non‑refoulement Claims Petition Office (“the Board’s Further Decision”) on BOR 2 risk; the Board having made its first Decision dated 8 June 2015 on the Torture risk, the BOR 3 risk and the Persecution risk.  See below.

2.  The applicant did not ask for a hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended by replacing the Director of Immigration (the “Director”) with the Board as proposed respondent.

The applicant

4.  The applicant is an Indian national.  He came to Hong Kong on 7 October 2014 on the strength of his passport.  However, he was refused entry by the Immigration Department.  On the same day, he lodged his non‑refoulement claim.

5.  He claimed that if refouled, he would be harmed or killed by the family of his girlfriend (“Sakshi”) because of his relationship with her.

6.  Around January 2014, he met Sakshi at a wedding and they fell in love.  This relationship was known by her aunt, who disapproved it.  Sakshi’s brothers went to his home together with 2 or 3 unknown persons.  They abused him with foul language and threaten to kill him if he continued to date their sister.  Their relationship continued as Sakshi agreed to marry him.  Her brothers then stopped him on his way to work in the street.  They were with 4 other unknown men armed with sticks and hockey sticks.  They assaulted him and he was injured.  His left upper arm had to be bandaged.  It took 10 to 15 days to recover.

7.  Sakshi’s family is connected with influential people in the locality.  He reported the matter to police.  However, he was bullied by a police officer, who told him not to report the case again. The officer also slapped him.  In around May 2014, he moved to live in his aunt’s house in order to avoid Sakshi’s brothers.  However, he met one of her brothers, who was with 4 unknown men.  They assaulted him with sticks and hockey sticks.  He suffered injuries on the right side of his head and his left elbow.  It took 10 to 15 days to recover.  His aunt reported the matter to police there.  But the police did not render assistance to him. 

8.  He moved to Jaipur, Rajasthan State, which is further away from his home in June 2014.  However, he met Sakshi’s brothers together with two other men.  They chased him for 2 km. and he managed to evade them.  He then moved to live in his uncle’s house.  However, he saw one of Sakshi’s brother around.  He took his uncle’s advice and left India for Macau.  From Macau he went to Hong Kong where he was denied entry.

The Director’s Decisions

9.  The Director considered his application 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”).

10.  By Notice of Decision dated 18 December 2014 (“the Director’s Decision”), the Director refused his claim on Torture risk, BOR 3 risk and Persecution risk for the reason that his claim was not substantiated.  The Director found that the level of risk of harm from Sakshi’s brothers upon his return was assessed to be low [11]; that state protection would be available to him [14] and internal relocation was an option open to him [24].  By Notice of Further Decision dated 15 February 2017 (“the Director’s Further Decision”), the Director refused his claim on BOR 2 risk as there was no evidence to establish this claim.

The Board’s Decisions

11.  The applicant appealed to the Board against the Director’s Decision.  He was absent on the first hearing on 10 March 2015 and attended the adjourned hearing before the Adjudicator on 21 April 2015.  At the beginning of the hearing, he told the Adjudicator that he would not answer any questions from her.  He simply referred her to the hearing bundle.  He maintained this position despite the Adjudicator having warned him that he had the burdened of proof and if he refused to answer her questions, she might disbelieve his evidence without his clarification.

12.  By the Board’s first Decision dated 8 June 2015 on the Torture risk, the BOR 3 risk and the Prosecution risk, the Board rejected his appeal and confirmed the Director’s Decision.

13.  According to its Decision, the Board considered the applicant’s evidence and for the reasons set out in paragraphs 12-29, it found that his story was not reliable because “the core assertions he made were unsupported, in circumstances where one would reasonably expect objective support to be adduced.” [31].

14.  The applicant also appealed the Director’s Further Decision to the Board. As the applicant had given no new materials or evidence, the Board decided to assess his appeal without holding an oral hearing [5].  In its deliberation of this appeal, the Board had taken into consideration of the material facts in its first Decision [14].  By the Board’s Further Decision, it found that there was no evidence to show that he would be at risk of BOR 2 harm if refouled [15].

Application for leave to apply for judicial review

15.  The applicant filed Form 86 on 21 August 2018 for leave to apply for judicial review of the Board’s Further Decision.

16.  In his affirmation in support of his application, he said that he wanted his case to be heard fairly on humanitarian ground.

DISCUSSION

17.  It is obvious that the Board had rejected all the facts in support of his application.  As such, he has no factual basis for his claim.  Humanitarian ground does not come into play in his application.

18.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held “13.… …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.”

19.  There is no evidence to show that the Board erred in the finding of the facts or the application of the laws to his case.

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

CONCLUSION

21.  I therefore refuse to grant leave for the applicant to apply for his 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