KULDEEP KUMAR v. THE DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL921/2018

[2019] HKCFI 110

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 921 of 2018

Application for Leave to Apply for Judicial Review

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

Following;

	consideration of the documents only;  or
	consideration of the documents and oral submissions by the Applicant in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant (Order by Deputy High Court Judge K.W. Lung):

THE APPLICATION

1.  The applicant applies for leave for judicial review of:

a.  The Director of Immigration (“the Director”); and

b.  The Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”).

The applicant

2.  The applicant came here from India unlawfully. He was arrested on 13 March 2015.

3.  He raised non-refoulement claim on 15 March 2015 on the ground that if he were repatriated back to India, he would be subjected to death, torture, cruelty or degrading treatment and persecution at the hands of a person called Satpal Singh (“Satpal”) and his associates belonging to the local Shiromani Akali Dal party (“SAD”) , a rival political party to his own affiliated political party Indian National Congress Party. Satpal had invited him to join SAD. He had turned down Satpal’s request several times. There had been three occasions where Satpal and a number of SAD associates went to his home, first to threaten him, then to use violence on him and his home. He had reported the matters to police. But the police did not take action on his complaint. He took his friend’s advice and came to Hong Kong to seek asylum.^[1]

The Director’s Decision

4.  The Director had considered the applicant’s claim on the following issues:

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.  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”).

5.  By Notice of Decision dated 1 November 2017 (“the Director’s Decision”), the Director rejected his application, saying that his claim was not substantiated.^[2] The Director had set out his reasons in support of his decision.

Appeal to the Board

6.  By Notice of Appeal dated 6 November 2017, the applicant appealed to the Board against the Director’s Decision.

7.  By Decision dated 23 May 2018 (“the Board’s Decision”), the Board rejected the applicant’s appeal. The Adjudicator of the Board had set out comprehensive background of the matter and the reasons for his decision. He had set out the discrepancies of the applicant’s evidence before the Immigration officer and at the hearing before himself. He came to the conclusion that the applicant was not a witness of truth. He said at paragraph 63 of the Board’s Decision:

“I have to regard his evidence of what happened to him in India as incredible and reject it in its entirety.”

Application for leave for judicial review

8.  By Form 86 under Order 53 rule 3(2) of the Rules of the High Court, the applicant applied for leave for judicial review of the Director’s Decision and the Board’s Decision.

9.  The applicant had, by an attachment to Form 86, set out his grounds in support of his application. As to the Director, he said:

a.  the Director had failed to consider state acquiescence;

b.  he was tortured as a result of misconduct of police officials;

c.  his country is unable to give him protection;

d.  the Director had not fully considered the matter;

e.  the Director had failed to give sufficient weight to the COIs that held in his favour;

f.  the Director had pre-conceived conclusion in considering the COI;

g.  corruption and incompetent administration in India is well-known; and

h.  the Director had failed to attain high standard of fairness.

10.  His grounds against the Adjudicator of the Board are:

a.  the Adjudicator failed to make sufficient enquiry before making his determination;

b.  the Adjudicator was unfair to require him to adduce evidence of proof of his case because he had been in custody; and

c.  the Adjudicator failed to give sufficient chance to him to arrange relevant evidence for his appeal.

DISCUSSION

The Director’s Decision

11.  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 [2018] HKCFI 2647, HCAL 806/2018, 5 December 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 and this Board has wider power to make investigations in the matter. See section 18 of Schedule 1A of the Immigration Ordinance, Cap. 115. The Board had heard the applicant’s appeal and made its Decision.

12.  Since the applicant has not set out any exceptional circumstances, his application for leave simply fails in limine.

13.  For the reasons above, I dismiss the applicant’s application for leave for judicial review of the Director’s Decision.

Finding of facts by the Adjudicator

14.  The Adjudicator had carefully examined the evidence obtained by the Director at the screening and he had put questions to the applicant at the hearing to test his veracity. Having considered the discrepancies in the applicant’s evidence, he rejected his evidence of what happened to him in India as incredible. He is entitled to do so. See Ali Haider CACV8/2018, [2018] HKCA 222 at §13.

15.  I agree with the Adjudicator that those facts as alleged by the applicant are not related to the state’s act or acquiesced state’s act.

16.  The grounds under paragraph 9 are the applicant’s opinion or comments, unsubstantiated by any facts or evidence.

17.  The ground under §10a. is also his opinion, unsubstantiated by any evidence.

As to ground 10.b, it is reasonable for the Adjudicator to require the applicant to prove his case. The applicant has the burden of proof.

18.  As to the ground under paragraph10.c., I have asked the applicant to clarify this ground in the hearing before me. The applicant said that he had forgotten that he had put down such an allegation in his affirmation.

CONCLUSION

19.  Having considered the applicant’s grounds in support of his application and for the reasons above, I find nothing amiss in the Board’s Decision. The applicant has no reasonable prospect of success in his judicial review application. I refuse to grant leave for his 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