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

HCAL 1938/2018

[2022] HKCFI 53

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1938 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 3 September 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”), the matter is dealt with 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 a citizen of India.  He entered Hong Kong on 1 April 2016 as a visitor but later overstayed.  He surrendered to the Immigration Department on 18 April 2016.  On 5 and 15 July 2016, he lodged non-refoulement claim.

5.     The applicant claimed that if refouled, he would be harmed or killed by Patturaj whom he had a dispute and fight with.  According to the applicant, Patturaj was from All India Anna Dravida Munnetra Nadu (“AIADMK”), the ruling party at the material time.  In February 2016, he had a dispute and fight with Patturaj who accused the applicant of teasing girls.  Patturaj attacked the applicant violently.  The applicant suffered some injuries but he did not report to the police as he feared that the police would take action against him for teasing the girls.  Thereafter, Patturaj on two occasions threatened and attempted to attack him.  The applicant confirmed that the injuries were not serious.  Out of fear, he fled to Hong Kong for protection.  Details of his story are set out in paragraphs 8-17 of the Director’s Decision and paragraphs 23-31 of the Board’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 13 December 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 him being harmed or killed by Patturaj upon refoulement was assessed to be low [34]-[35]; that state protection was available to him [36]-[41] and that internal relocation was an option open to him [42]-[44].

The Board’s Decision

8.     The applicant appealed against the Director’s Decision.  On 5 June 2017, the Board scheduled an oral hearing for his appeal, during which the applicant gave oral evidence with the assistance of an interpreter [4].

9.     By the Board’s Decision, the Board affirmed the Director’s Decision and dismissed his appeal.  Before the Board, the applicant raised another claim that he feared he would be harmed from his creditors [32].  The Board evaluated the applicant’s evidence against his oral testimony.  It accepted that the applicant had a fight with Patturaj and he was attacked. However, even taking the applicant’s evidence as it was, the injures were not serious [33].  The Board also found that the applicant’s version on Patturaj’s visit to his house inconsistent [34]-[35].  On the applicant’s credibility, the Board attached some credence to several aspects of his claim.  However, the Board did not accept that there were on-going threats from Patturaj [36]-[38]. Further, the Board found that there was no evidence suggesting AIADMK’s involvement in the applicant’s alleged dispute [39].  As a result, the Board rejected the applicant’s claim on all applicable grounds [44]-[48].

Application for leave to apply for judicial review

10.     The applicant filed Form 86 dated 14 September 2018 for leave to apply for judicial review of the Board’s Decision.

11.     In his affirmation in support of his application, he said that the Board had not considered his problems in his country. He was not given sufficient time to prepare his evidence.

DISCUSSION

12.     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).

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

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.     He has submitted no valid ground to assist his application.  The Board has rejected his evidence on the main facts in support of his claim.  He therefore has no factual basis in support of his claim.  He had not raised before the Board that he did not have sufficient time to prepare his evidence for the hearing.  He is therefore not allowed to raise this issue before the Court.

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 realistic prospect 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