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HCAL 2710/2018
[2021] HKCFI 1500
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2710 of 2018
BETWEEN
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Pradeep Kumar |
Applicant |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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and |
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Director of Immigration |
Putative Interested Party |
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. This is the applicant’s application for leave to apply for judicial review of the Decisions respectively dated 7 November 2016 (“the Board’s First Decision”) and 22 November 2018 (“the Board’s Second Decision”) of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decisions”). The applicant did not, in Form 86, specify which Board’s Decision he is making application for leave for judicial review. However, since the Board had to take into account the facts in its First Decision in order to assess the merits of the case before coming to its Second Decision, I consider that the application should cover the Board’s both Decisions.
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 to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.
The applicant
4. The applicant is a citizen of India. On 26 February 2014, he came to Hong Kong from Macau and was refused permission to land. He raised a non-refoulement claim with the Immigration Department.
5. He claimed that if refouled, he would be harmed or killed by Surinder Singh and his men because of a land dispute in India. Surinder Singh was a member of a strong political party, Shiv Sena Party. He had a good connection with police because they were affiliated with drug smuggling activities. In 2013, Surinder and his men had stopped the applicant from working on the land. They assaulted him with hockey sticks for about 5 minutes and he was injured. He and his father had gone to police to complain. But the police made no investigation. Surinder brought about 10 people to his home and threatened that if he worked on the land, he would be killed. Surinder went further to frame up that he trafficked in dangerous drugs. Police came to look for him. He escaped and lived in his friend’s house. He called his mother, who told him that police were still looking for him and they said that they would kill him if they saw him. He went further away from his home and live in another friend’s house. He finally stayed in his aunt’s home for two to three months. He decided to leave India and go to Hong Kong in order to save his own life. Details of his story are set out in paragraphs 6-24 of the Director’s Decision as described below.
The Director’s Decisions
6. The Director considered his application in relation to the following risks:
a. risk of torture under Part VII C 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”).
7. By Notice of Decisions respectively dated 12 September 2014 (“the Director’s Decision”) and 10 January 2017 (“the Director’s Further Decision”), the Director refused his claim for the reason that his claim was not substantiated. In the Director’s Decision the Director found that the level of risk of being harmed or killed by Surinder and his men if he returned to India was assessed to be low [37]; that state protection was available to him [39]; that there was no evidence that the state was involved [40]; and internal relocation was an option open to him [56].
8. The Director, by his Further Decision, found that the applicant failed to establish his person right under BOR 2 risk would be violated. [6]
The Board’s Decisions
9. The applicant appealed against the Director’s Decisions. He appeared before the Board on 17 April 2015.
10. By the Board’s First Decision, the Board rejected his appeal and affirmed the Director’s Decision on the Torture risk, BOR 3 risk and Persecution risk. The Board found that the applicant’s evidence was incongruent in relation to the land dispute and Surinder’s oppression on him [24]; that his evidence was incoherent or illogicalbin relation to police fabrication of dangerous drugs against him [26]; that he would not face a real and existing risk of torture from Surinder or the police [29]. On the same bases, the Board rejected his claim on BOR 3 and Persecution risks.
11. By its Second Decision, the Board found that the applicant had no evidence to show that he would be subjected to BOR 2 risk if he returned to India. [21]
Application for leave to apply for judicial review
12. The applicant filed Form 86 on 29 November 2018 for leave to apply for judicial review of the Board’s Decisions.
13. In his affirmations in support of his application, he said that the Board did not consider the reality before reaching its decision, which was therefore unfair.
DISCUSSION
14. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.
15. 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.”
16. His ground in support of this application is only his opinion without evidence in support and therefore does not assist his application.
17. The Court does not find any error of law or procedural unfairness in the Board’s Decisions. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.
18. There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.
CONCLUSION
19. I therefore refuse to grant leave for the applicant to apply for his intended judicial review. Accordingly, I dismiss his application.
Dated the 2nd day of June 2021
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(M.O. WONG)(Ms) |
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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 2 June 2021
Pradeep Kumar
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 2 June 2021
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 266/14/9/93/IN77; BOR 58/17/1/35/IN12
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 336/14 & RBCZ 9001310/16 (Formerly RBCZ 79/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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