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

HCAL 1411/2019

[2024] HKCFI 910

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1411 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 3 May 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.  The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, his application is dealt with on the papers.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant is a national of India. He entered Hong Kong as a visitor on 16 April 2015 and was permitted to remain until 20 April 2015. He did not depart and had overstayed. On 31 May 2015, he was arrested by the police. On 11 June 2015, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by his customer Billa and his agent Subash.

5.  In short, the applicant operated a business of mobile phone and also a travel and tour agency. In May 2014, he arranged a tour to Cyprus. One of his customers was Billa. The applicant collected the money from the customers and paid an agency operated by Subash. However, Subash cheated him and took the money away. There was no trip to Cyprus nor could the applicant refund the sum to the customers. He had reported the matter to a police station, which had transferred the case to other divisions but there was no solution. After 27 May 2014, Billa and his family and friends had been chasing him for the sum. He could only return 1/3 of the sum. In January 2015, he caught Subash and wanted to take him to the police station. Yet, the police refused to help. Meanwhile, Subash called gangster members with an attempt to assault the applicant. In March 2015, Billa assaulted and threatened him. In addition, on 10 April 2015, his customers sent 8 to 10 people to attack the applicant. Out of fear, he eventually fled to Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 30 April 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

6.  The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“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 way of the Director’s Decision, the Director dismissed the applicant’s claim. In elaboration, the Director found that (i) his claimed risk of harm was groundless [14]; (ii) state protection would be available to him [15]; and (iii) internal relocation was also a viable option [16].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 10 August 2018, the Board conducted an oral hearing for his appeal, during which he answered the Board’s inquiries with the assistance of an interpreter [57].

9.  The Board recapped the applicant’s claim and his oral testimonies [7]-[61]. Having considered the evidence, the Board made the following findings. The Board noted that the applicant had provided significantly different information in relation to how much money he paid to the agent [67]-[76], which he failed to provide satisfactory answer. It also noted that on the document provided by the applicant he was listed as Subhash’s partner [77]. Further, the Board found that the applicant’s evidence suggesting that he had continued to live in the house and that his family still lived in the house, which undermined his claim that they were harassed by the customers or Subhash [78]-[86]. Also, when pressed for details and explanations, the applicant’s evidence was found to be vague and confusing [88]. In these premises, the Board concluded that the applicant was not a witness of truth [92]-[94].

10.  For the above reasons, the Board found that the applicant’s claim was not substantiated and dismissed his appeal.

Application for leave to apply for judicial review of the Board’s Decision

11.  The applicant has filed Form 86 dated 24 May 2019 for leave to apply for judicial review of the Board’s Decision.

12.  In the applicant’s affirmation in support of his application, the applicant said that he is not satisfy with the Board’s Decision as it the Board did not see his case seriously.

DISCUSSION

13.  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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

15.  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.”

16.  The Board had given its reasons in paragraph 9 to say that the applicant’s evidence was unreliable. The applicant has raised no valid reason to challenge the Board’s Decision. In my view, the Board was quite entitled to make such findings as it had done.

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

CONCLUSION

18.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. 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