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

HCAL 1779/2018

[2020] HKCFI 1367

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1779 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:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review of the Decision dated 23 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  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 the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 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 them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant attended the hearing on 1 November 2019.

3.  Leave was granted to the applicant to amend Form 86 by deleting the Director of Immigration (“the Director”) as the respondent.

The applicant

4.  The applicant is an Indian national. On 3 April 2008, he came to Hong Kong as a visitor. He overstayed without permission since 1 May 2008.  By written signification dated 29 October 2008, he lodged a non-refoulement claim with the Immigration Department. He was convicted of breach of condition of stay in Hong Kong. He was conditionally discharged subject to keeping good peace for 12 months.

5.  He claimed that if refouled, he would be harmed or killed by members from Akali Dal Party (“ADP”) because he was an active member of the Indian Congress Party (the “CP”) and he had political dispute with them.

6.  The incidents leading him to leave India took place between 1998 to 2007 as summarized below.

a.     He became an active member and supporter of CP in 1992. The ADP people disrupted his arrangements for the group’s meetings and he fought back.

b.     In 1998, he set up his business of selling confectionery products in the region. He had to deliver the goods to other retailers in other areas.

c.     In 2007, the ADP people contracted operation of the toll tax booth. They caused difficulty to his delivery of goods by making inspection of the goods unnecessarily, causing delays and disturbances. They also involved police to make the investigation too. The police were abusing their powers.

d.     Because of the difficulties, he had sustained loss in his business. He closed down his business in April/May 2007.

e.     In April 2007, he was harassed and threatened by the ADP people and he was attacked by them by using a glass bottle to hit his head. He was injured. But he did not report it to police as he considered that it would be no use as ADP was the ruling party.

f.     He moved to other places such as New Delhi, Uttar Pradesh, Sat Kartar Dera in Jalandhar and lived in his relatives’ and friends’ places. He came across no problem in those places.

g.     He decided to leave India. He borrowed money from the money-lenders. He went to the Republic of Guinea where he stayed for 11 months. But he still felt unsafe there. So he came to Hong Kong.

The Director’s Decisions

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

a.     torture risk under Part VIIC 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”).

8.  By Notice of Decision dated 16 January 2015 and Notice of Further Decision dated 31 March 2017, collectively called (“the Director’s Decisions”), the Director refused his claim for the reason that his claim was not substantiated. The Director considered the Notice of Decision and took the view that the level of risks was low [15]; that there was state protection [19] and that relocation were available to him [21]. The Director considered the Further Notice of Decision and found that he failed to established a claim under BOR 2 risk [6].

The Board’s Decisions

9.  The applicant appealed to the Board against the Director’s Decision. He attended a hearing before the Adjudicator on 10 June 2016.

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

11.  The Board considered the applicant’s evidence. The Board did not challenge the facts of his case. But it found that on the facts as alleged, the applicant failed to establish his case under the Torture Risk, the BOR 3 risk or the Prosecution risk. See paragraphs 47 -57 of the Board’s Decision.

12.  On 19 June 2017, the applicant filed his appeal to the Board against the Director’s Further Decision dated 31 March 2017. The appeal was out of time. The applicant gave the reason that he did not receive the Director’s Further Decision. The Board did not accept his explanation because the applicant did not state the reason why he was unable to receive it. The Board found that there were no special circumstances or it would be unjust not to allow the late filing of the Notice of Appeal. It therefore disallowed the applicant’s late filing of the Notice of Appeal. In essence, the applicant’s appeal was dismissed.

Application for leave to apply for judicial review

13.  The applicant filed Form 86 on 29 August 2018 for leave to apply for judicial review of the Board’s Further Decision. However, I have to consider the Board’s Decision as well because the Director had, in his letter dated 28 February 2017 to the applicant for further information in support of his BOR 2 risk claim told the applicant that he would consider his non-refoulement claim “on all applicable grounds for non-refoulement protection, including any other absolute and non-derogable rights under the Hong Kong Bill of Rights, including right to life under Article 2 (BOR 2 risk),…”

14.  In his affirmation in support of this application, he did not state that the Board had committed any error in reaching its decision. He simply said that he was not satisfied with the Board’s decision.

DISCUSSION

15.  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.”

16.  The Court of Appeal in Re: Moshsin Ali, [2018] HKCA 549 (CACV 54/2018)at §42held that the Board’s decision is final, subject to judicial review by the court. However, there is no evidence to show that the Board erred in its finding of the facts or in the application of the laws to the case.

17.  Therefore, the applicant has shown no valid reason against the Board’s Decision.

18.  As to the Board’s Further Decision, the Board had not observed the decision of the Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019 Lisa Wong J, where it held:

“Where a notice of appeal is filed out of time, s. 37ZT(2) mandates the Board to decide as a preliminary decision without a hearing whether it allows the late filing of the notice of appeal, and in doing so, to take account of “any other relevant matters of fact within the knowledge of the Board” apart from the explanation for the delay. [17]

Where there is a serious or significant breach for which no good reason is given, the decision maker moves to evaluate all the circumstances of the case with a view to dealing justly with the application. [18]

It was incumbent upon the Board, in exercise of its discretion to extend time for appeal, to take the merits of the applicant’s case into account regardless of the procedural breaches or the lack of explanation therefor. [20]”

19.  The Board did not consider or evaluate all the circumstances of the case with a view to dealing justly with the application. To say that there were no other circumstances of the case would ignore the fact that the Board had considered the facts of the case in relation to other risks. It was incumbent upon it to take the facts of the case into consideration for the assessment of the BOR 2 risk.

20.  The question remains whether such procedural irregularity would render the Board’s Further Decision subject to judicial review, bearing in mind the principle held in the Court of Final Appeal in Peter Po Fun Chan (2007) 10 HKCFAR 676 §14 that the test for whether leave should be granted to the applicant to have judicial review of the authorities’ decision was whether the applicant could show that he had a reasonable prospect of success in his intended judicial review. Its purpose is to prevent public authorities from being unduly vexed with unarguable challenges.

21.  The applicant had given no further information to the Director in relation to BOR 2 risk. Putting his case at the highest, relying upon the facts found by the Director and the Board in relation to the other risks, the applicant obviously has no ground in support of his claim under BOR 2 risk. Such conclusion is so clear that it is unnecessary to make any further finding of facts or clarification of the facts found.

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

CONCLUSION

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