JOSEPH BABU IRUTHYARAJ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL399/2017

[2018] HKCFI 1266

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 399 of 2017

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 refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1.  The applicant is an Indian national who entered Hong Kong on 29 October 2007 and was permitted to remain for 14 days.  He extended his Visa on several occasions but failed to collect his passport from the Immigration Department.  He then overstayed from 27 December 2007 and was arrested by the police on 25 April 2008.  Only after his arrest did he lodge a non‑refoulement protection claim.  The Director of Immigration (“the Director”) rejected his claim on 21 January 2015 and 16 December 2016.  The applicant lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 6 July 2017.

2.  The applicant filed a notice of application for leave to apply for judicial review on 13 July 2017.  An oral hearing was set down and the applicant was heard on 19 January 2018.  The applicant appeared in person having had his application for legal aid refused on 5 January 2018.  He requested an adjournment to await a decision of his appeal of that legal aid refusal.  His legal aid was refused because his application lacked merit.  I refused his application to adjourn and later his appeal was rejected.

3.  The basis of his claim was that if he were to return to India he would be killed by his uncle because of a land dispute.  Both the Director and the adjudicator of the TCAB set out the applicant’s evidence and case in detail in their decisions therefore, there is no need to repeat it here.

4.  In short, after his father died in 2007, his land was subsequently transferred to the applicant.  However, his uncle who was politically connected demanded the applicant transfer half of the land to him, the applicant refused and he was constantly harassed by his uncle and his two sons.  They threatened to kill him if he refused to transfer it and even broke the windows of the applicant’s home.  The applicant reported the threats and harassment to the police.

5.  After the threats to kill him, the applicant moved away and stayed with his friend from April 2007 until August.  He was told that his uncle and his two sons had located him at his friend’s house and were looking for him.  The applicant was frightened his uncle would find him so he went to Chennai.  He then arranged a flight to Hong Kong and left in October 2007.

6.  The adjudicator, as did the Director, 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”).

7.  The adjudicator conducted an oral hearing and treated the appeal as a rehearing.  The applicant elected to answer his questions.  The adjudicator correctly set out the law and key legal principles applicable to the four grounds.  He set out the applicant’s evidence, claim and his analysis of it.  He set out his assessment of the applicant’s evidence.

8.  In the main, he believed the applicant’s evidence but found that even on his own facts, the applicant was unsuccessful in showing he was at risk of torture, unable to invoke the protection of BOR 2 or BOR 3 and could not prove a persecution risk arising from a private dispute over land.  The adjudicator applied the law to his findings and found the applicant did not face a real risk if refouled to India.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

9.  The applicant’s Form 86 does not make it clear who he intends the respondent to be; he names the Petition Team of the Security Bureau.  He stated that the interested party is the TCAB.  However, he specifically refers to the TCAB decision therefore, I take the intended respondent to be the TCAB.

10.  The applicant writes that he is not satisfied with the TCAB decision and he was not given time to submit supporting documents.  He reiterates that there is a risk to his life if he returned home.  He says he has a child born in Hong Kong in March 2017.  During the oral hearing he added that he cannot take his baby back to India because his family have threatened to kill him after he had a baby with another woman in Hong Kong.  He added that his girlfriend’s family have threatened to kill her and their baby if she is refouled home for the same reason.

11.  The applicant was asked why he did not produce any supporting documents when he had had 10 years from arriving in Hong Kong in 2007 to obtain such documents but he had no good or reasonable excuse.  There were no grounds that were reasonably arguable or had any merit.  The fact he has a child in Hong Kong is not a consideration for this court when deciding such an application for leave to apply for judicial review.

12.  I saw no fault with the adjudicator’s findings nor will I interfere with his findings.  I see no error of law and the adjudicator’s decision.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

13.  In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, 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