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

HCAL 1898/2018

[2020] HKCFI 1397

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1898 of 2018

Application for Leave to Apply for Judicial Review

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

Following;

(1)  Extension of time for application for leave to apply for judicial review of the decision of Torture Claims Appeal Board dated 17 April 2018 be refused; and

(2)  Application for leave to apply for judicial review be dismissed.

IT IS FURTHER DIRECTED that:

(1)  If the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

(2)  When filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

(3)  The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

(4)  If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

(5)  Liberty to apply.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review of the Decision dated 17 April 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant asked for a hearing. He attended the hearing.

The applicant

3.  The applicant is an Indian national. He had come to Hong Kong before and lodged a torture claim on 17 June 2008. He withdrew his claim on 8 September 2010. He lodged another torture claim on 12 May 2011, which was rejected on 11 August 2011. He came to Hong Kong illegally on 7 June 2016. He surrendered to the Immigration Department and made his non-refoulement claim on 8 July 2016.

4.  He claimed that if refouled, he would be harmed or killed by members of the Communist Party of India (Maxist) (the “CPIM”) for reasons arising from a political dispute.

5.  He joined the The All India Trinamool Congress (“TMC”) in 2000 or 2001. TMC was a rival party with CPIM. Between 2007 April and 2015, he was attacked by members of CPIM for four times and they also threatened him by phone. In the first attack in 2001, he was assaulted by 10-12 members of CPIM. He sustained a fracture in his left forearm. A steel plate was inserted which remains. He was hospitalized for 22 days. He did not report the attack to police. He believed that that police would not be interested. The second attacked took place in January 2011 whilst he was on his way to the doctor for chickenpox treatment. He was attacked by 7-8 people. On 7 April 2011, he was attacked by six people. In the 4^th attack, he was beaten up by 12-15 people. His middle finger was cut by a broken bottle and his right wrist was slashed. He continued receiving threatening calls after the 4^th attack. He then came to Hong Kong.

The Director’s Decision

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

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.  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 25 January 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director found that there was no substantial ground to believe that he would be harmed or killed by his opponents upon his return to India [16]; that state protection would be available to him [17] and that relocation was an option open to him [18], and that he was unable to establish BOR 2 risk [24].

The Board’s Decision

8.  The applicant appealed to the Board against the Director’s Decision. He attended a hearing before the Adjudicator on 7 and 9 November 2017 respectively.

9.  By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decision.

10.  The Board considered the applicant’s evidence and found that the applicant was not a good witness. He was evasive and his answers were self-contradictory. He failed to answer the questions [32]. On the second day, he insisted that he would not answer the Board’s questions and asked the Board to make decision on that basis, despite the fact that the Board told him that there were inconsistencies in his evidence and it wanted his clarification [33]. The Board finally came to a conclusion that his case was not borne out by the evidence [36]. See the detailed analyses in paragraphs 39-96. The Board also found that there would be state protection for him [122]. Also, internal relocation was an option open to him [127].

Application for leave to apply for judicial review

11.  The applicant filed Form 86 on 11 September 2018 for leave to apply for judicial review of the Board’s Decision.

12.  In his affirmation in support of his application, he said he would be in danger if he was sent back to his country.

DISCUSSION

13.  His application is beyond 3 months from the date of the Board’s Decision. This court has to consider the merits of his intended judicial review in order to determine whether time should be extended for him to make this application.

14.  He appeared before the Court and confirmed that the interview before the immigration officer and the Board were fair and he was free to give evidence. His lawyer had explained the Director’s Decision to him. He had no comments on the Board’s findings above.

15.  There is no evidence to show that the Board erred in the finding of the facts or the application of the laws to his case.

16.  The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.

CONCLUSION

17.  I therefore refuse to extend time for the applicant to apply for leave to apply for his intended judicial review.  Accordingly, I dismiss his application.

18.  It is further directed that:

a.  If the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

b.  When filing the application for leave to appeal, the applicantmust at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

c.  The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

d.  If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

e.  Liberty to apply.

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