VISHPAL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS

HCAL 1433/2018

[2021] HKCFI 696

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1433 of 2018

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.  This is the applicant’s application for leave to apply for judicial review of the Decision dated 12 July 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“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 (“RHC”), 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 and the Director of Immigration (the “Director”) is the interested party.

The applicant

4.  The applicant is an Indian national. He came to Hong Kong on 29 April 2015 illegally and was arrested by police on 30 April 2015. He lodged his non-refoulement claim with the Immigration Department on 2 May 2015.

5.  He claimed that if refouled, he would be harmed or killed by Naresh Kumar (“Naresh”). He was a witness of a murder case where Naresh shot another person called Uday. He had given a statement to police. Naresh and his people went to him and asked him to withdraw his statement. He refused. They assaulted him with weapons. He tried to avoid them by residing elsewhere. But they were able to trace him. Finally, he had to leave India for Hong Kong. Details of the incidents are set out in paragraph 8 of the Director’s Decision described below.

The Director’s Decision

6.  The Director considered his application 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 Notice of Decision dated 29 November 2016 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director found that the level of risk of harm from Naresh upon his return to India was assessed to be low [15]; that state protection was available to him [17.3] and internal relocation was an option open to him [18].

The Board’s Decision

8.  The applicant appealed to the Board against the Director’s Decision. He attended the hearing on 2 March 2018.

9.  By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision for the reasons as set out below.

(1)  The Board found that the applicant’s claim to have been pursued by Naresh and his relatives in India were not true and that his claim to fear ill-treatment at their hands should he return to India was also unfounded. [46]

(2)  The Board found that there were not any grounds, let alone substantiated grounds, to support the conclusion that he would face a real risk of ill-treatment if he returned to India. [47]

(3)  The Board therefore rejected his claim on Persecution risk [50], BOR 3 risk [52], BOR 2 risk [53] and Torture risk [56].

Application for leave to apply for judicial review

10.  The applicant filed Form 86 on 20 July 2018 for leave to apply for judicial review of the Board’s Decision.

11.  In his affirmation and a separate attachment in support of his application, he set out his grounds summarized as follows:

(1)  no reasonable basis or adequate reasons to reject his credibility;

(2)  failure to consider extended state acquiescence;

(3)  failure to consider the COI;

(4)  irregularity: the adjudicator is not the same immigration officer; failing to investigate the COI; selective weights to COI; adjudicator referring to COI without prior referring it to the applicant; failing to consider consistent system of human right violation; failing to consider state protection; consider irrelevant issues; no legal representation or hearing for the BOR 2 risk assessment;

(5)  procedural impropriety: no sufficient chance for the applicant to call evidence; failing to call psychological and/or psychiatric report; applying incorrect standard of proof and no proper basis for internal relocation assessment.

DISCUSSION

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

13.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13.… …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.”

14.  The Court of Appeal in Re Ahmed Syed Rafiq [2018] HKCA 178, 26 March 2018, held that the applicant is not entitled to free legal representation at every stage of the proceedings as he had already had duty lawyer’s service at the screening stage [22].

15.  His grounds in support of his application above are sweeping. Most of them are not applicable to his case. There was no state involvement in his case. The Board had given its reasons in support of its findings. See paragraphs 37-44 of the Board’s Decision. I consider that it is unnecessary to address each of his grounds. I have dealt with the relevant grounds by reference to the authorities above. There is no evidence or specifics in support of any of the other grounds. There is no problem with the consideration of the Country of Origin Information by the Board or the application of the law to his case. The grounds above should be rejected.

16.  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.

17.  There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.

CONCLUSION

18.  I therefore refuse to grant leave for the applicant to apply for his intended 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