SATISH KUMAR v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1148/2018

[2021] HKCFI 3359

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1148 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only; or
	consideration of documents and Applicant being absent in open court;

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 1 June 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”).

2.  The applicant did not ask for a hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the matter is dealt with 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. He last entered Hong Kong as a visitor but overstayed since 3 October 2013.  On 13 January 2014, he surrendered to the Immigration Department.  On 9 April 2014, he lodged a non-refoulement claim made by way of written signification.

5.  The applicant claimed that if refouled, he would be harmed or killed by two gangsters who were closely connected to the police, the Member of Legislative Assembly (“MLA”) and the Shiromani Akali Dal Party (“SAD”).  The applicant said that he and his friends got into a fight with two gangster boys who offended a girl in a wedding ceremony in around June or July 2013.  Both of them suffered minor injuries. The applicant did not report to the police.  Thereafter, the two boys, with their followers, revenged by hitting the applicant with a car and verbally threatened him.  Again, the applicant did not report to the police as he knew that the two boys were influential.  Out of fear, he fled to Hong Kong for protection.  Details of his story are set out in paragraph 6 of the Director’s Decision described below and paragraphs 40-79 of the Board’s Decision.

The Director’s Decision

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 Decision dated 15 February 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.  The Director found that the level of risk of him being harmed or killed by the two gangster boys upon refoulement was assessed to be low [12]-[17]; that state protection was available to him [18]-[25] and that internal relocation was an option open to him [26]-[30].

The Board’s Decision

8.  The applicant appealed against the Director’s Decision.  On 30 May 2018, while he was reluctant to engage in the process of enquiry, the Board was able to consider his oral testimony with the assistance of an interpreter: [96]-[97]. 

9.  By the Board’s Decision, the Board affirmed the Director’s Decision and dismissed his appeal.  The Board took into account the applicant’s unwillingness to provide clarifications when assessing his credibility [96].  It found that, in the course of cross-examination, the applicant’s oral testimony was vague and contained significant discrepancies with his evidence in his non-refoulement claim form [98]-[133].  The Board refused to accept that he had suffered severe injuries due to the fight nor did it accept that, after the retaliation in the hit and run accident, the men would continue to harass the applicant.  If they wished to seriously harm or kill the applicant, they could have done that in the car accident.  Further, the Board rejected the allegations that the gangsters were well connected to the police or any political affiliations [134]-[139].  Also, according to the available country of origin information, state protection was available to the applicant [140]-[143].  For these reasons, the Board rejected his claim on all applicable grounds [144]-[159].  In any event, there was no state involvement and internal relocation to Delhi and Mumbai would be available to the applicant [160]-[169].  

Application for leave to apply for judicial review

10.  The applicant filed Form 86 dated 20 June 2018 for leave to apply for judicial review of the Board’s Decision.

11.  In his affirmation in support of his application, he said that he was not satisfied with the Board’s Decision.

DISCUSSION

12.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal.  The Court will not usurp the fact finding power vested in the Director and the Board.  See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, CA. §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

13.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

14.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …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.”

15.  He has submitted no valid ground to assist his application.  The Board has reject his evidence on the essential facts in support of his claim.  He therefore has no factual basis in support of his claim.

16.  The Court does not find any error of law or procedural unfairness in the Board’s Decision.  The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

17.  There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

18.  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