RASHPAUL CHAND v. THE DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL1006/2018

[2019] HKCFI 250

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1006 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.  This is the applicant’s application for leave for judicial review against the decisions of the Director of Immigration (“the Director”) and the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”).

The applicant

2.  The applicant is an Indian national, who came to Hong Kong on 30 September 2012 as a visitor and was permitted to stay until 14 October 2012. He overstayed without permission of the Director. He was arrested by police and was referred to the Immigration Department for investigation on 27 February 2013. On 3 March 2014, he lodged his non-refoulement claim.

3.  He claimed that if he was refouled to India, he would be harmed or even killed by the Pakistani terrorists as his residence was near the borders between India and Pakistan.

4.  In his statements given to the Director and the Board, the applicant said that in 2006 he had experienced twice attempted abduction by the Pakistani terrorists and he did escape whereas some of his friends had disappeared. In 2007, his brother was killed by the Pakistani terrorists. In 2012, whilst he was playing cricket, the Pakistani terrorists attacked and he was lucky enough to have escaped. Then, he felt it was dangerous to stay in his home village. He decided to come to Hong Kong.

The Director’s Decision

5.  The Director had considered the applicant’s application by reference to the risks below:

a.  risk of torture under Part VIIC 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”).

6.  By Notice of Decision dated 21 July 2017, the Director reject the applicant’s application for the reason that the applicant’s claim is not substantiated. See paragraph 5.

7.  The applicant appealed to the Board.

The Board

8.  The applicant appeared before the Adjudicator of the Board on 6 April 2018.

9.  By Decision dated 1 June 2018 (“the Board’s Decision”), the Board refused the applicant’s appeal and confirmed the Director’s Decision.

10.  The Adjudicator found that the applicant was very evasive and was not willing to tell the whole truth to the Board and even upon the applicant’s evidence, India had taken national and international measures to tackle terrorism [76] and there was state protection for the applicant [79]; internal relocation was available to the applicant [87]; the applicant failed to show that he was subjected to torture if he returned to India [101] and he was not targeted by the state of its agents [102]; his case did not fall within the context of section 37U(1) of the Immigration Ordinance [106] and he would not face a genuine risk of life [116]; and finally, he was not subjected to persecution risk [133].

Application for leave for judicial review

11.  By Form 86 dated 4 June 2018, under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave for judicial review of the decisions of the Adjudicator of the Board and the Director respectively.

12.  In his affirmation in support of his application filed on 4 June 2018, the applicant relied upon the grounds below:

(1)  the Director failed to maintain high standard of fairness and his conduct was Wednesbury unreasonable;

(2)  the Director failed to consider the issue of state acquiescence;

(3)  the Director had not considered collusion between the police and the high ups of political circles and the misconduct of the police officials;

(4)  the Director failed to give sufficient weight to the Country of Origin Information (“COI”) which supported the applicant’s case;

(5)  the Director elected to adopt COI which suited his pre-conceived conclusion, which is unfair to the applicant;

(6)  the Director failed to appreciate that corruption and incompetency of the administration in the applicant’s country;

(7)  the Adjudicator failed to make sufficient enquiry before making the determination;

(8)  the Adjudicator was wrong to demand evidence from the applicant because the applicant was being kept in the detention centre; and

(9)  the Adjudicator failed to give sufficient chance to the applicant to arrange relevant evidence to support the claim.

DISCUSSION

The Director’s Decision

13.  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 HCAL 806/2018, 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 than this Court to make investigations in the matter. The Board had considered his appeal and made its Decision.

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

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

The Board’s Decision

16.  At the hearing before me, the applicant confirmed that he had no complaint against the Director, the interpreter or his own lawyer. Nor did he have any complaint against the Adjudicator of the Board or the interpreter in the appeal hearing. He was simply not happy with their Decisions.

17.  Grounds (1), (4), (5), (6) (7) are his opinion without any evidence to support. These grounds fail.

18.  Ground (2) and ground (3) are irrelevant as the Adjudicator had found that there was no state involvement. These grounds fail.

19.  As to ground (8), the Adjudicator was entitled to ask for proof from the applicant. If he had any difficulty in getting the evidence, he should have told the Adjudicator for his decision. He had not done so. This ground fails.

20.  As to ground (9), this is non-point as the applicant had not said what evidence he wished to adduce. It fails too.

21.  In the circumstances, he has failed to show that there is any reasonable prospect of success in his proposed judicial review.

CONCLUSION

22.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave for the 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