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HCAL 1881/2018
[2020] HKCFI 1554
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1881 of 2018
BETWEEN
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Padikkasu Kasinathan |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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and |
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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 4 September 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).
2. Leave was granted to the applicant to amend Form 86 by deleting the Director to be replaced by the Board as the respondent and by deleting the Board to be replaced by the Director of Immigration (“the Director”) as the interested party.
The applicant
3. The applicant is an Indian national. He come to Hong Kong on 27 March 2007 as a visitor. As from 11 April 2007, he overstayed and was arrested by police on 3 November 2009. He was referred to the Immigration Department on 4 November 2009. On 5 November 2009, he lodged a non-refoulement claim. On 23 November 2009, he withdrew the application and on 29 January 2010, he requested to continue with his application.
4. He claimed that if refouled, he would be harmed or killed by the people of a political party, All India Anna Dravida Munnetra Kazhagam (“AIADMK”) as he was a member of Dravida Munnetra Kazhagam (“DMK”), their rival party. He also claimed that two police officers would file false cases against him due to his love affairs with one of the officers’ daughter and his affiliation with DMK.
5. The incidents leading to his leaving his country took place as set out below.
a. He was a supporter of DMK since 2005. In 2006 election, he helped DMK, which in coalition with other parties, came into power.
b. After the election, members of the AIADMK led by R visited his home causing troubles. They caused damage to his house and warned him that they would kill him if he continued to assist DMK.
c. In September 2006, K, another member of AIADMK, came to his house with about 20 AIADMK people. K was armed with a rifle and the other people with wooden sticks and metal pipes. They all attacked him. He sustained a broken bone in his hands. His mother was also attacked. K further threatened him that he would be shot if he continued to help DMK.
d. He went to the police station to report the matter. The police did not assist him but said that the Head Constable had grudge with him because he had a relationship with his daughter.
e. After the attack, he moved to stay in his friends’ places. In November 2006, he went to Coimbatore to work as a bartender in a hotel. In January 2007, he saw K’s men in the hotel. They asked him if he was working in the hotel. He did not reply. He then saw those men around the hotel.
f. In September or November 2006, DMK asked him to return home to help them. He declined. He then came to Hong Kong.
The Director’s Decisions
6. The applicant had lodged a torture claim previously and was rejected by the Director and also by the Board upon appeal, the Director considered his application in relation to the following risks:
a.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”);
b.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
c.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 25 September 2015 and Notice of Further Decision dated 16 August 2017, collectively called the (“Director’s Decisions”), the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that there were no substantial grounds for believing that he would be in danger of being harmed upon his return to India [15]; state protection [21] and relocation [27] were available to him. He also failed to establish BOR 2 risk. See paragraph 9 of the Director’s Further Decision.
The Board’s Decision
8. The applicant appealed to the Board against the Director’s Decisions. He attended a hearing before the Adjudicator on 28 November 2017.
9. By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decisions.
10. The Board considered the applicant’s evidence and was of the view that the applicant’s evidence was vague, generalized, inventing, hearsay and exaggerating and it was unable to attach any weight to his evidence. See paragraph 47 to 60 of the Board’s Decision.
Application for leave to apply for judicial review
11. The applicant filed Form 86 dated 10 September 2018 for leave to apply for judicial review of the Board’s Decision.
12. In support of his application, he stated that he was not satisfied with the Board’s Decision. The Adjudicator relied upon the information from the webs. India is a big country. It cannot provide 100% guarantee security to its people.
DISCUSSION
13. The applicant appeared before me and he confirmed that he was free to express his views before the immigration officer and before the Board. His lawyer explained the Director’s Decision to him, He understood the Board’s Decision himself.
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. His grounds in support of his application do not assist him.
16. The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.
CONCLUSION
17. 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.
Dated the 15th day of July 2020
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(Mike Mak) |
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for Registrar, High Court |
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 15/7/2020
Padikkasu Kasinathan
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 15/7/2020
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 2353/15/10/22/IN483
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1028/15 & INCZ 9002060/17 (previous ref. RBCZ2001714/14)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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