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HCAL 2250/2018
[2022] HKCFI 1352
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2250 of 2018
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Rinku |
Applicant |
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Torture Claims Appeal Board/ |
Putative Respondent |
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Non-refoulement Claims Petition Office |
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Director of Immigration |
Putative Interested Party |
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:
THE APPLICATION
1. This is the applicant’s application for leave to apply for judicial review of the Decision dated 28 March 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”). The applicant’s application filed on 16 October 2018 is late. I shall deal with this issue below. However, for reason unknown, the applicant had put down the date of the Board’s Decision to be 29 December 2017, There is no document with such a date on the file. This will be treated as an error on the date of the Board’s Decision and will be rectified in paragraph 3.
2. The applicant did not ask for a hearing. I shall deal with his application 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, the Director of Immigration (the “Director”) is the interested party and the date of the Board’s Decision is 28 March 2017.
The applicant
4. The applicant is a national of India. He came to Hong Kong as a visitor on 30 December 2013. But, on 1 January 2014, he submitted a written request for non-refoulement claim. He claimed that, if refouled, he would be harmed of killed by Mr. Binda (“Binda”) or his family because of their grudges on him for hurting Binda’s son.
5. According to the applicant, Binda is a person with wealth and influence in his locality. One day in January 2013, whilst he was driving his tractor, a motorcycle driven by Binda’s son ran into his tractor, causing serious injuries to his head and body. Whilst he was escorting Binda’s son home, Binda and another person came across him. They slapped him and kicked him. The attack lasted for 5 minutes. He had to live in his relative’s premises in order to avoid Binda. He was told that Binda’s people were looking for him. After staying with his relative for a few days, he decided to return home. On this occasion, he was again attacked by three people with shaving blade and fists. One of them kicked him on his head and he lost consciousness. He was taken to hospital and his wounds treated. He recovered and had to move to live in various places of his relatives. Upon advice from his family, he left India for Hong Kong. Details of his story are set out in paragraphs 6-28 of the Director’s Decision described below.
The Director’s Decisions
6. The Director considered the applicant’s claim 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 the Director’s First Decision, the Director refused the applicant’s claim on the grounds of Torture risk, BOR3 risk and Persecution risk, holding that the level of risk of being harmed or killed by Binda upon his return to India was assessed to be low [36]. The Director found that (i) the absence of past serious harm indicated an unlikelihood of future risk of harm [37]; (ii) there was no evidence that state protection would not be available to him [40-43]; and (iii) internal relocation was an option open to him [44]. By a Notice of Further Decision dated 5 May 2017, the Director also rejected the applicant’s claim on BOR2 risk (“the Director’s Second Decision”) for the reason that there was no evidence to support that his right of life would be violated upon his return.
8. The Director’s First Decision and the Director’s Second Decision will be referred to collectively as “the Director’s Decisions”.
The Board’s Decision
9. The applicant appealed the Director’s Decisions to the Board. An oral hearing was held on 27 July 2016 for his appeal. The Board reported that after the adjudicator explained the purpose of the oral hearing to him, he stated, “Whatever information given before is the same.” He chose not to give evidence.
10. Having considered the evidence, the Board, for the reasons given in paragraph 19, found that the applicant did not really intend to ask for non-refoulement protection; that he had exaggerated his case and that his claim was not a genuine claim. The reasons given by the Board are that the applicant had lied to the immigration officer when he came to Hong Kong. It was illogical for him or his family members not to report the incidents to police although the applicant considered that Binda was well-connected. Furthermore, after he had been advised to leave India for better safety, he did not come to Hong Kong directly, but had gone to other places as a visitor for about 9 months. The Board further considered that internal relocation was an option open to him [39-43]. The Board therefore dismissed his appeal.
Application for leave to apply for judicial review
11. The applicant filed Form 86 on 16 October 2018 for leave to apply for judicial review of the Board’s Decision.
12. In his affirmation in support of his application, he said he wanted to refute the Board’s Decision.
DISCUSSION
13. As mentioned in paragraph 1, the applicant’s application is seriously late. The Court has to consider the length of the delay, the reasons for the delay, the prospect of the intended application and the prejudice to the putative respondent if extension of time is granted. Also, the Court should not grant extension for a hopeless application. See AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 and Re Adumekwe Rowland Ejike [2019] HKCA 702, §19. I shall, therefore first consider the merit of the applicant’s case.
14. 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).
15. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
16. 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.”
17. Since the applicant refused to give evidence, the Board had considered the evidence before it and found the facts of his case, which the Board was entitled to do. The applicant has raised no valid ground to challenge the Board’s Decision.
18. 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.
19. There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.
CONCLUSION
20. I therefore refuse to extend time for the applicant to apply for leave to apply for judicial review. Accordingly, I dismiss his application.
Dated the 19th day of May 2022
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(M.O. WONG)(Ms)
for Registrar, High Court
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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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s 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 19 May 2022
Rinku
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 19 May 2022
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 1035/15/2/183/IN272
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 1004/14 (Formerly RBCZ 2751/14) & RBCZ 90001300/17 (Formerly RBCZ 21/14)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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