MATHRIYE MASAAL KARMJEET SINGH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1571/2018

[2019] HKCFI 2038

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1571 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 oral submission 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.  The applicant is not legally represented and he did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of their claim. See Re: Ali Haider CACV8/2018 [2018] HKCA 222 at paragraphs 13 and 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court, by letter, invited the applicant to appear before it in order to explain the above to the applicant. At the same time, the Court will examine if the parties stated in Form 86 are correct. The Court will also see if the applicant has had a fair screening before the Immigration Officer and a fair hearing before the Board and if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant attended the hearing on 17 July 2019.

2.  The applicant had wrongly named the respondent in Form 86.  Leave was granted to him to amend Form 86 to put in the proper name of the respondent.

The applicant

3.  The applicant is an Indian national.  He came to Hong Kong on 20 June 2014 and was allowed to stay as visitor until 4 July 2014.  He overstayed and was arrested by police on 3 August 2014. He lodged the non-refoulement claim on 5 August 2014.

4.  In support of his claim, he said that if refouled, he would be tortured or killed by the family members of Saman Preet Kaur (“Saman”) as they opposed his relationship with her.

5.  His relationship with Saman started by the end of 2010 or the beginning of 2011.  Saman’s family was rich and he was poor.  Saman’s family objected to their relationship.  One night in 2011, Saman’s father found him inside Saman’s room.  He and Saman’s two brothers beat him up.  His parents were called to the scene.  There was a negotiation between two families.  He was released upon his promise that he would not see Saman again.  He was bleeding and was admitted to hospital.  However, four or five months later, he saw Saman again.  Saman’s brother saw them in a restaurant.  The brother and eight other people assaulted him on the street.  He escaped being unhurt.  He moved to his aunt’s house where he stayed for four months.  Then he returned home.  Two weeks after that, he met Saman’s brother and was beaten up by him again.  He moved to stay in his friend’s and his aunt’s house.  He arranged to meet Saman again.  Her family saw that and her father and brother beat him up.  A month later, he was found by Saman’s brother, who beat him up.  This time, he suffered a broken leg and was admitted to hospital.  After that he stayed with his friend.  Finally, he came to Hong Kong through an agent.

The Director’s Decisions

6.  The Director considered his application in relation to the following risks:

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

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 18 May 2016 and Notice of Further Decision dated 10 July 2017, collectively called “the Director’s Decisions”, the Director refused his claim for the reason that his claim was not substantiated.

The Board’s Decision

8.  The applicant appealed to the Board against the Director’s Decisions and he attended a hearing before the Adjudicator on 24 April 2018.

9.  By Decision dated 20 July 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decisions.

10.  The Board considered the applicant’s evidence.  It did not reject his evidence wholesale.  However, for the reasons set out in the Board’s Decision it came to the facts below.

(1)  The applicant did not seek protection at the first available opportunity after he had arrived in Hong Kong until he was arrested, which would affect his credibility [50].

(2)  The applicant’s case was not an “honour killing” case [55 & 65].

(3)  It did not accept the Saman’s family went on looking for him with intent to harm him up to June 2014 [64].

(4)  It did not accept that Saman’s family had any great influence with the police [66].

(5)  The risk, if any, is localized and the option of internal relocation is available to the applicant [86].

Application for leave to apply for judicial review

11.  The applicant filed Form 86 dated 8 August 2018, under order 53, rule 3(2) of the Rules of the High Court for leave to apply for judicial review of the Board’s Decision.

12.  In his affirmation dated the same date, the applicant did not put down any reasons in support of his application.

DISCUSSION

13.  The applicant appeared before me and he confirmed that he was able to speak freely and tell his stories fully before the Board. He confirmed that he had had a fair interview with the Immigration officer and a fair hearing before the Adjudicator. He also confirmed that he understood the Director’s Decision as his lawyer had explained it to him. His friend had assisted him with the hearing bundle and the Board’s Decision. 

14.  I put those findings in the Board’s decision to him and asked him for his comments.  He said that he had no comments on them.

15.  It is clear that the Board rejected the main facts in support of his claim. Therefore, he had no factual basis in support of his claim.

16.  The Court of Appeal in Re: Moshsin Ali CACV54/2018 [2018] HKCA 549 held that the findings of facts by the Adjudicator was final [42].

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

CONCLUSION

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