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

HCAL1102/2018

[2019] HKCFI 2227

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1102 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

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 the decision of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”), with the Director of Immigration (“the Director”) as the interested party.

2.  The applicant requested a hearing.  The hearing was fixed at 10:00 am on 23 November 2018.  However, the applicant was absent on that day.

3.  By an Order dated 23 November 2018, this Court dismissed his application for want of prosecution.

4.  The applicant failed to take out an application for leave to appeal against the said Order to the Court of Appeal within time.  Pursuant to Order 59, rule 2B(1) of the Rules of the High Court (“RHC”), the applicant filed a summons dated 19 December 2018 to seek leave to appeal against the said Order to the Court of Appeal out of time.

5.  On 27 December 2018, this Court gave directions that a hearing be fixed at 10:00 am on 25 January 2019 and the applicant should file an affirmation to state his reasons for his absence on 23 November 2018 within 7 days from the date of the direction.

6.  The applicant failed to comply with my directions. I requested the applicant to state his reasons before me. He took oath to say that he had a medical appointment for his wrist on that day and he had come to the Registry the next day. He had produced a medical certificate for proof.

7.  I am satisfied with his explanation for his absence on 23 November 2018.

8.  Under Order 32, rule 6 of the RHC, this Court has the jurisdiction to set aside an order made ex parte.  Pursuant to Order 1A, rule 1 and Order 1B, rule 1(2)(l) RHC, I shall now treat the applicant’s application as an application to set aside the order which I made on 23 November 2018 dismissing his application.  The said order is now set aside.

9.  I shall now consider the applicant’s application for leave for judicial review of the Board’s Decision.

The applicant

10.  The applicant is an Indian national, who came to Hong Kong through China on 16 January 2014 as a visitor and was permitted to stay until 30 January 2014. He overstayed without permission from the Director.  On 26 February 2014, he was arrested by police. On 28 February 2014, he lodged his torture claim to the Director.

The grounds of non-refoulement protection

11.  The applicant claims that if he is refouled to Pakistan, he will be harmed or killed by the loan shark, Mishra, from whom he had borrowed money but was unable to repay.

12.  In his statements given to the Director and the Board, he said that he had borrowed money from a loan shark called Mishra. Mishra had been pressing him to repay the loan by going to his home. He had tried to avoid Mishra by moving to other places in India. However, he was told that he was located by Mishra. Therefore, he decided to come to Hong Kong to avoid him and his people.

The Director’s Decisions

13.  The Director had assessed his application on the following risks^[1]:

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”).

14.  By Notice of Decision dated 16 October 2015 and Notice of Further Decision dated 12 September 2017 respectively, the Director rejected the applicant’s non‑refoulement claim for the reason that his claim was unsubstantiated.

The Board’s Decision

15.  The applicant appealed to the Board and on 10 January 2018, the applicant attended a hearing before the Adjudicator.

16.  The Adjudicator had considered the evidence before him and found that the incidents alleged by the application were private matters and should not be regarded as any Convention reason. He also found that the applicant had failed to demonstrate that he had a well-founded fear of persecution. Internal protection was available from the Indian government.[2]

17.  By Decision dated 7 June 2018 (“the Board’s Decision”), the Board refused the applicant’s appeal and confirmed the Director’s Decision.

Application for leave for judicial review

18.  By Form 86 dated 14 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 Board’s Decision.

19.  The applicant has filed his affirmation in support of his application, in which he set out the grounds, which are summarized below:

(1)  he did not have an interview with the immigration officer on the BOR2 risk; he simply answered questions from the Director;

(2)  he received the hearing bundle a few days before the hearing;

(3)  the contents of the hearing bundle were in English and he was not provided with translation of the documents;

(4)  he was confused at the hearing before the Adjudicator;

(5)  he was not legally represented at the hearing;

(6)  the Adjudicator had relied upon hearsay materials to say that he was safe to be repatriated back to India; and

(7)  the Director and the Adjudicator made their decisions without understanding his situation.

DISCUSSION

20.  The applicant appeared before me. He confirmed that he had had a fair hearing before the Board and he had no complaint against anybody.

21.  The applicant further said that before he attended the appeal hearing, he had his friend, who explained the Hearing Bundle to him. He had come across no difficulty throughout the appeal hearing.

22.  It is clear that the Adjudicator had no problem with his stories. However, based upon his own story, the applicant simply has no reason to support his claim because his case falls outside the protection under the relevant Conventions and the Ordinance.

23.  The above grounds are therefore irrelevant.

24.  Ground (1) fails because it is not necessary for the Director to arrange another interview for BOR 2 risk under the Ordinance.

25.  Grounds (2) to (4) falls in light of what he admitted in court.

26.  The Court of Appeal in  Re: Ahmea Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018, Lam VP [22] had said: “This Court has repeatedly held that neither the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration. We do not find anything amiss arising from lack of legal representation in the process before the Board.” Ground (5) fails.

27.  Grounds (6) and (7) are the applicant’s opinions without any evidence in support of them. They fail.

CONCLUSION

28.  For the reasons above, I find that the applicant’s application for judicial review has no reasonable chance of success. Accordingly, I refuse to grant him leave to apply 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

[1] See §§3 & 4 of the Notice of Decision of the Director

[2] §§56-60 ibid