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

HCAL 1841/2018

[2019] HKCFI 2347

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1841 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 Woodcock):

1.  The applicant is an Indian national who claimed to have entered Hong Kong illegally on 3 September 2015 only to be arrested three days later.  He lodged a non-refoulement protection claim on 9 September 2015.  This claim was rejected by the Director of Immigration (“the Director”) on 23 February 2018.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which was rejected on 21 August 2018 after an oral hearing conducted on 9 August 2018.  He filed a notice application for leave to apply for judicial review on 5 September 2018.  Although the Form 86 is dated 8 August 2018, I take the date of the application to be the date that the necessary administrative fees were paid.  

2.  The applicant has not requested an oral hearing for this application therefore, I will consider it on the papers.  The basis of the applicant’s claim was that he would be harmed or killed by his paternal uncle and/or his affiliated political party “BJP” due to a land dispute.  Both the Director and the adjudicator set out the applicant’s evidence and claim in detail in their decisions therefore, I do not intend to repeat it here.

3.  The applicant was born in February 1989, had 12 years of education and 11 years of employment experience as a farmer in India and a driver in Iraq.  The applicant’s father and paternal uncle were left land in equal shares by their father.  The paternal uncle demanded the applicant’s father sell his share of the land to him for a low price which was rejected.  The issue came to a head in March 2015 when the applicant was beaten by his uncle and 10 men armed with wooden sticks on the farm land that his uncle coveted.  He was hospitalised for one night and released the following day.  His uncle had threatened him; threatening to frame him for a criminal offence with his influence with the local police.

4.  The applicant was frightened and aware of his uncle’s political influence so he moved to a relative’s home for about two months which was about 150 km away.  He decided he could not hide for the rest of his life so he left India in August 2015.  That family land will eventually be transferred to him and his younger brother but that will mean his uncle will turn his attention to the applicant and force him to transfer the land to him.

5.  The Director and the adjudicator of the TCAB analysed the applicant’s claim under all applicable grounds;

a.     risk of torture as defined in part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, (“torture risk”);

b.     risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of Hong Kong Bill of Rights Ordinance Cap 383 and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”);

c.     risk of persecution by reference to the non-refoulement principal under Articles 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“persecution risk”); and

d.     risk of a violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 6 ICCPR (“BOR 2 risk”).

6.  The applicant’s affirmation to support this application contained no grounds.  He only repeats that he is unable to return to his home country because he was in fear and threatened with death.  He applied to judicial review the TCAB decision.

7.  The adjudicator treated the appeal as a rehearing and directed that a hearing be conducted.  The applicant appeared and elected to answer questions.  The adjudicator set out the law and key legal principles applicable to all grounds.  The adjudicator did not find the applicant’s evidence credible or truthful.  He did not find him a genuine claimant.  He set out in his decision the inconsistencies and discrepancies that seriously undermined the credibility of the applicant.

8.  He made a finding that the applicant and his family were not involved in a land dispute with his uncle therefore, the adjudicator did not accept that the applicant would face any of the prescribed forms of harm from his uncle or his uncle’s men should he return to India.  The adjudicator dismissed the appeal/petition and confirmed the decision of the Director.

9.  Even though there are no grounds relied on by the applicant, I did examine and scrutinised the adjudicator’s decision to ascertain whether she made any errors of law and whether she analysed the appeal/petition with a high standard of fairness as is required.  I considered whether the application of the enhanced Wednesbury test was satisfied.

10.  I found no failings on the part of the adjudicator.  She gave full reasons for her finding that the applicant was not a truthful witness nor credible.  I found no errors of law nor any evidence of procedural unfairness.  She did not fail to adhere to a high standard of fairness.  There is no realistic prospect of success and I refuse leave to apply for judicial review.

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