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

HCAL 1705/2018

[2019] HKCFI 2616

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1705 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 (Order by Deputy High Court Judge Woodcock):

1.  The applicant is an Indian national who arrived in Hong Kong on 30 September 2014 but was refused permission to land here.  Being legally represented, the applicant lodged his non‑refoulement protection claim on the same day.  That claim was rejected by the Director of Immigration (“the Director”) on 23 December 2014.  That claim included three grounds of risk; torture, BOR 3 and persecution.  That decision was appealed and it was dismissed by the Torture Claims Appeal Board (“TCAB”) on 16 August 2018.  

2.  On 17 January 2017, the Director wrote to the applicant and invited him to submit any further information to support an additional ground, a BOR 2 risk claim within 14 days if he wished. The applicant did not provide any further information within that time period. The Director studied the applicant’s case under BOR 2 and on 7 February 2017 determined the applicant could not invoke protection under BOR 2; a Notice of Further Decision was issued.  On 13 February 2017, the applicant filed a notice of appeal/petition to the TCAB against that Notice of Further Decision.

3.  The adjudicator determined the appeal/petition without a hearing and rejected it on 16 August 2018.  The applicant then filed a notice of application for leave to apply for judicial review on 21 August 2018.  The applicant has not requested an oral hearing and I will consider this application on the papers.

4.  This application only concerns his BOR 2 risk claim determination.  The adjudicator treated the appeal as a rehearing. However, an oral hearing is not an automatic right.  She found there to be no need for further questions as all had been addressed previously.  She found no advantage in holding an oral hearing.  She found it unnecessary to hold a hearing mainly because there were no new materials or evidence to consider, which meant an oral hearing was not warranted.  The applicant had been afforded an opportunity by the Director to adduce additional facts in relation to his BOR 2 claim but had not done so.

5.  The adjudicator clearly did not see a need nor the justification to organise yet another oral hearing merely to recanvass exactly the same case as had already been dealt with and disposed of previously.  She was of the view that the appeal/petition could be dealt with by way of a paper review.  The adjudicator set out Article 2 and said she had considered the applicant’s case and the reasons given in the previous TCAB decision which were applicable to that rehearing.

6.  There was a finding that the applicant could not succeed in establishing a case under BOR 2; nothing in the evidence to show that the applicant will be at risk of BOR 2 harm if he returned to India.  The adjudicator confirmed the decision of the Director.  Upon a reading of the papers, it is clear it was never the applicant’s case that he would be arbitrarily deprived of life in India, have the death penalty imposed on him or otherwise be deprived of his rights under BOR 2.

Leave to apply for judicial review

7.  The applicant seeks to judicial review the adjudicator’s decision.  Although, it is never a decision to be taken lightly, I agree with the adjudicator that in this case an oral hearing could be dispensed with and the necessary high standard of fairness could still be maintained.  When the Director and the adjudicator dealt with the torture, BOR 3 and persecution risk claims there were oral hearings and the applicant was legally represented before the Director.  With the BOR 2 risk claim, the applicant did not respond to an invitation to submit further information to the Director and I understand why the adjudicator found it unnecessary to conduct the appeal/petition orally with the applicant present. She found there was nothing useful to contribute in the form of a hearing.

8.  The applicant has not set out any grounds in his affirmation.  I did consider with rigorous examination and anxious scrutiny the papers of this application.  I do not find any ground that shows there was an error of law by the adjudicator.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.  The same in fact applies to the decision of the Director.

9.  In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.

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