HCAL1051/2018
[2019] HKCFI 622
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1051 of 2018
BETWEEN
Subba Sosal
Applicant
and
Kevin Anthony Browne,
Putative Respondent
and
Director of Immigration
Putative Interested Party
Application for Leave to Apply for Judicial Review
Following;
Order by Deputy High Court Judge K.W. Lung :
Leave to apply for Judicial Review be refused .
Observations for the Applicant (Order by Deputy High Court Judge K.W. Lung):
THE APPLICATION
1. This is the applicant’s application for leave for judicial review against the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board ”), with the Director of Immigration as the interested party (“the Director ”).
2. The applicant requested a hearing. The hearing was fixed at 10:00 am on 23 November 2018. However, the applicant was absent on that day.
3. By an Order dated 23 November 2018, this Court dismissed his application for want of prosecution.
4. The applicant failed to take out an application for leave to appeal against the said Order to the Court of Appeal within time. Pursuant to Order 59, rule 2B(1) RHC, the applicant filed a summons on 10 December 2018 to seek leave to appeal against the said Order to the Court of Appeal out of time.
5. On 11 December 2018, this Court gave directions that a hearing be fixed at 10:00 am on 11 January 2019 and the applicant should file an affirmation to state his reasons for his absence on 23 November 2018 within 7 days from the date of the directions.
6. The applicant did not file the affirmation as directed.
7. He submitted in court that he made a mistake of the hearing because he had attended a hearing before a Master in the High Court in respect of an appeal against the decision of the Director of the Legal Aid Department the day before the hearing on 23 November 2018. He therefore did not attend the hearing on 23 November 2018. He did not intend to abuse the court’s system.
8. I am satisfied with his explanation for his absence on 23 November 2018.
9. Under Order 32, rule 6 of the RHC, this Court has the jurisdiction to set aside an order made ex parte. Pursuant to Order 1A, rule 1 and Order 1B, rule 1(2)(l) RHC, I shall now treat the applicant’s application as an application to set aside the order which I made on 23 November 2018 dismissing his application. The said order is now set aside.
10. I shall now consider the applicant’s application for leave for judicial review of the Board’s Decision.
The applicant
11. The applicant is an Indian national, who came to Hong Kong through Macau on 8 March 2015 as a visitor and was permitted to stay until 10 March 2015. He overstayed without permission from the Director. On 27 July 2015, he was arrested by police and was convicted and sentenced to four weeks’ imprisonment, suspended for three months. On 28 August 2015, a removal order was issued against him. On 9 September 2015, he lodged his non-refoulemnt claim to the Director.
12. The applicant relies upon the ground in support of his non-refoulemnt claim that if he is refouled to India, he would be harmed or killed because of political rivalry.
13. In his statements given to the Director and the Board, he said that he was a member of Sikkim Democratic Front (“SDF ”) and Sikkim Krantikari Morcha (“SKM ”) was its rival party. He was invited to convert into member of SKM in 2014. He refused. He was threatened at first. However, on 1 September 2014, he was attacked by 7-8 members of SDF. He was so badly hurt that he passed out for three days and had to remain in the hospital for 5-6 days. He did not report the matter to police as he knew that SDF was a powerful party. He was advised to leave India. He therefore came to Hong Kong.
The Director’s Decision
14. The Director had assessed the applicant’s application on the following risks[1]
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. 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 ”).
15. By Notice of Decision dated 16 February 2017 (“the Director’s Decision ”), the Director rejected the applicant’s non-refoulement claim.
The Board’s Decision
16. The applicant appealed to the Board. On 20 March 2018, he attended a hearing before the Adjudicator of the Board.
17. The Adjudicator had considered the evidence before him and found that the above risks did not apply to the applicant. Even if the applicant were subject to the threats of SDF as he alleged, he could well relocate himself to other regions such as Kolkata.[2]
18. By Decision dated 25 May 2018 (“the Board’s Decision ”), the Board refused the applicant’s appeal and confirmed the Director’s Decision.
Application for leave for judicial review
19. By Form 86 dated 8 June 2018, under Order 53, rule 3(2) of the RHC, the applicant applied for leave for judicial review of the decision of the Adjudicator of the Board.
20. The applicant has filed his affirmation in support of his application. I shall summarize the grounds below:
(1) his BOR 2 risk was assessed without another screening;
(2) he received the hearing bundle a few days before the hearing;
(3) the contents of the hearing bundle were in English and he was not provided with translation of the documents;
(4) he was confused at the hearing before the Adjudicator;
(5) he was not legally represented at the hearing; and
(6) the Adjudicator had relied upon hearsay materials concerning his country of origin information to say that he was safe to be repatriated to India.
DISCUSSION
21. The applicant appeared before me. He confirmed that before the appeal hearing, he had a friend who helped him with the Hearing Bundle and the appeal. He understood the Hearing Bundle before the hearing and he had no difficulty throughout the hearing. He considered that he had had a fair hearing before the Adjudicator.
22. Ground (1) fails because the Immigration officer was entitled to process the BOR2 risk on the papers. The applicant had already had the first interview before the Immigration officer in respect of other risks.
23. Grounds (2) to (4) fail in light of what he said in court.
24. The Court of Appeal in Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178 , 26 March 2018, Lam VP [22] had said: “This Court has repeatedly held that neither the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14 , Re Zahid Abbas [2018] HKCA 15 , Re Tariq Farhan [2018] HKCA 17 , and Re Lopchan Subash [2018] HKCA 37 . The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration. We do not find anything amiss arising from lack of legal representation in the process before the Board.” Ground (5) fails.
25. Ground (6) fails too because the Adjudicator was entitled to rely upon those materials and the applicant is unable to identify any problem with those materials.
CONCLUSION
26. For the reasons above, I find that the applicant’s application for judicial review has no reasonable chance of success. I refuse to grant him leave for the judicial review. Accordingly, I dismiss his application.
Dated the 15th day of March 2019
(Henry Ng)
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:
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)).
Sent to the Applicant on 15/3/2019Subba Sosal
Applicant’s ref. no:
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 15/3/2019
Kevin Anthony Browne,
Director of Immigration
Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)
Form CALL-1
[1] See §§3 & 4 of the Notice of Decision of the Director
[2] See §§50-54 of the Board’s Decisions dated 25 May 2018