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

HCAL 2404/2018

[2020] HKCFI 1656

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2404 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.  The applicant is not legally represented and he did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court (“RHC”), by letter, invited the applicant to appear before it in order to explain the above to them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant attended the hearing on 4 September 2019.

2.  Leave was granted to the applicant to delete the Director as the respondent and name him as the interested party and to put the proper name of the Board’s Decision for his application.

The applicant

3.  The applicant is an Indian national. He came to Hong Kong on 20 February 2014 as a visitor and was permitted to stay until 6 March 2014. He overstayed. On 28 March 2014, he was arrested and referred to the Immigration Department. On 30 March 2014 he lodged a non-refoulement claim.

4.  In support of his claim, he said that if refouled, he would be harmed or killed by a group of murderers (“the murderers”) who murdered his ex-girlfriend Gagandeep Kaur, Gagandeep’s father and brother because he was the only eye witness of the murder case.

5.  He claimed that one night in 2004, he saw six to seven killers escaping from the scene where his girlfriend, her father and her brother were murdered. These murderers were his girlfriend’s father’s business partners. He recognized some of the murderers. He did not go to report the matter to police as he feared that the murderers would take revenge on him. However, he was summonsed by police to give statement. In 2014, whilst driving on the road, he was stopped by the murderers. They threatened to kill him if he testified against them. They asked him to leave India. He decided to leave for Hong Kong.

The Director’s Decision

6.  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”).

7.  By Notice of Decision dated 6 April 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.

The Board’s Decision

8.  The applicant appealed to the Board against the Director’s Decision and he attended a hearing before the Adjudicator on 21 September 2018.

9.  By Decision dated 19 October 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.

10.  The Board considered the applicant’s evidence and, for the reasons set out in the Board’s Decision, came to the conclusion below:

“87. Having considered all the information and evidence, for the reasons given above and given the Appellant’s problematic evidence, I do not accept that the Appellant has been truthful in his claims. I reject the Appellant’s case in its entirety. … …I find that the Appellant has manufactured a story based on the news article about a murder incident in order to provide a basis for his non‑refoulement claim. As such, I do not accept that the Appellant will face a real risk of harm from anyone upon return to India for reasons relating to the claimed murder incident and/or the claimed past events.”

Application for leave to apply for judicial review

11.  He filed Form 86 dated 30 October 2018 for leave to apply for judicial review of the Board’s Decision.

12.  In his affirmation, he simply asked the Court to review his case.

DISCUSSION

13.  The applicant appeared before me. He confirmed that he was able to express freely before the immigration officer and the Adjudicator.

14.  I put the Board’s findings to him. He said that he understood. He complained that the Adjudicator did not believe him. But he was unable to identify any reasons for his complaint.

15.  The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.

CONCLUSION

16.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the 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