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HCAL922/2018
[2019] HKCFI 132
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 922 of 2018
BETWEEN
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Shaik Abdul Monir |
Applicant |
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The Director of Immigration |
1st Putative Respondent |
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The Adjudicator of the Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
2nd 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 (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 Decisions of:
a. The Director of Immigration (“the Director”); and
b. The Torture Claims Appeal Board/Non-refoulement Claims Petition (“the Board”).
The applicant
2. The applicant is an Indian national. According to the Adjudicator’s Decision, he first came to Hong Kong as a visitor on 16 June 2014, then returned to India on 20 June 2014. He then came to Hong Kong again on 16 July 2014 as a visitor. But he overstayed unlawfully and was arrested on 10 August 2014. He made his international protection to the Director on 12 August 2014. He submitted his Non-refoulement Claim Form but he did not attend an interview for the screening. The Director arranged another interview with him. But the interview was aborted because he said that he was unwell. The Director then sent him a list of questions for him to complete. He had answered those questions. But there was no further interview for the applicant.
The grounds of non-refoulement protection
3. The applicant relies upon the ground in support of his non-refoulement claim that if he is returned to India, he will be harmed or killed by the family of his girlfriend as they objected to and did not approve his relationship with her.
4. In the statements he gave to the Director and the Board, he said that he met this girl in 2007 and they fell in love with each other. This was noticed by the girl’s family. The family did not approve their relationship. The girl’s father warned him about it. But they continued. In 2012, when he was with the girl, her father and other family members attacked him. He escaped to his grandmother’s residence. But the girl’s family continued to harass him. In 2014, the family went to his home and attacked him. He had suffered minor injuries. He then fled to Hong Kong in 2015, but returned to India again as his mother told him the matter was settled. However, he was again attacked by the girl’s family. He moved to other places and finally decided to come to Hong Kong. He had reported the matter to police, but they took no action as the girl’s father had close relations with the All India Trinamool Congress party.
The Director’s Decision
5. The Director assessed his application by reference to his answers to the questions without an interview on the following risks[1]:
(1) risk of torture under Part VIIC of the Immigration Ordinance, Cap 115, (“the Ordinance”) (“Torture risk”);
(2) 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”);
(3) 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
(4) 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 17 November 2016, the Director rejected the applicant’s non-refoulement claim on all the above grounds.
The Board’s Decision
7. On 30 November 2016, the applicant appealed to the Board and on 18 May 2018, the applicant attended a hearing before the Adjudicator of the Board.
8. The hearing before the Adjudicator was a special hearing, quite different from other hearings of the Board. In the other hearings, usually the appellant was unrepresented and the Director had no representative attending the hearing. It was only an interview between the Adjudicator and the appellant. In this hearing, the appellant was represented by a lawyer of the Duty Lawyer Scheme and the Director was also represented by his representative.
9. In the beginning of the hearing, the Adjudicator had informed the parties that the hearing was a complete, de novo reconsideration of the appellant’s international protection claim. See paragraph 7 of the Board’s Decision. The Adjudicator had also advised the applicant to cooperate with him and try to answer his questions.
10. However, the applicant refused to answer the Adjudicator’s questions. The Adjudicator stood down the matter so that the applicant’s lawyer might give legal advice to the applicant. Despite legal advice, the applicant still refused to answer the Adjudicator’s questions.
11. As a result, the Adjudicator assessed the applicant’s claim on the written materials provided by the Director. He found discrepancies and inconsistencies in the applicant’s account, including in his assertions as to the nature of the alleged source of harm he faced. See paragraph 10 of his Decision.
12. As a result, the Adjudicator had placed very little weight upon the applicant’s assertions. See paragraph 40 of his Decision.
13. By Decision dated 18 May 2018, the Board refused the applicant’s appeal and confirmed the Director’s Decision. The Adjudicator of the Board had set out the reasons in its Decision.
Application for leave for judicial review
14. By Form 86 dated 24 May 2018, under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave for judicial review of the decisions of the Director and the Adjudicator.
15. The applicant has filed his affirmation in support of his application. He relied on the reasons set out in the enclosure annexed with Form 86:
(1) the Director failed to maintain high standard of fairness as he had failed to attach sufficient weight to state acquiescence;
(2) the Director failed to consider collusion of police and the political circles;
(3) the Director selected Country of Origin Information that suited his pre-conceived conclusion but failed to give weight to the information that supported his case;
(4) the Adjudicator had not made sufficient enquiry before making his decision;
(5) the Adjudicator was wrong to require evidence from him as he was being in custody of the Immigration Department; and
(6) the Adjudicator failed to give him sufficient chance to arrange evidence in support of his case.
DISCUSSION
The Director’s Decision
16. In my view, the applicant is not entitled to apply for judicial review of the Director’s Decision without exceptional circumstances. In Haider Zeeshan v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office and The Director of Immigration HCAL 806/2018, I had held that an applicant, without exceptional circumstances, is not entitled to apply for judicial review of the Director’s Decision because the Board has been established by legislation to deal with appeals against the Director’s Decision with wider power than this Court to make investigations in the matter. The Board had heard the appeal and made its Decision.
17. The applicant is unable to state any exceptional circumstances for his application.
18. For the reasons above, I dismiss the applicant’s application for leave for judicial review of the Director’s Decision.
The Board’s Decision
19. The applicant appeared before me as he requested a hearing himself.
20. He confirmed that he was represented by a lawyer when he appeared before the Adjudicator in the appeal hearing against the Director’s Decision. He admitted that he was unwilling to cooperate with the Adjudicator by refusing to answer his questions despite having been advised by his lawyer.
21. He was unable to give any explanation for his attitude towards the Adjudicator. He only said that he was asked to give evidence to prove, but he had no evidence to prove his case.
22. I consider that it was not a good reason for him to refuse answering the Adjudicator’s questions. The Adjudicator has his duty to make investigation into the matter in the appeal hearing.
23. I consider that the Adjudicator was entitled to attach very little weight to the applicant’s story. There was nothing amiss in the appeal hearing and there is no reason for the applicant to have judicial review of the Board’s Decision.
24. Grounds (1) to (4) are simply his comments without any evidence in support. They fail.
25. As to ground (5), the Adjudicator was entitled to request evidence from the applicant to prove his case. He refused to cooperate with the Adjudicator without good reason. This ground fails.
26. As to ground (6), it is untrue as revealed by the facts above.
CONCLUSION
27. For the reasons above, I find that the applicant’s application for judicial review has no reasonable chance of success. I refuse granting leave for his judicial review. Accordingly, I dismiss his application.
Dated the 23rd day of January 2019
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(Alan Ngan)
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
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Notes for the Applicant:
If leave has been granted, the Applicant or his 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 23/1/2019
Shaik Abdul Monir
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 23/1/2019
The Director of Immigration
1st Putative Respondent’s ref. no.:
QA T/C 1623/16 (formerly RBCZ 10848/16)
The Adjudicator of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office
2nd Putative Respondent’s ref. no.:
USM 5352/16/11/291/IN1115
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] See §§3 & 4 of the Notice of Decision of the Director
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