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

HCAL 2391/2018

[2020] HKCFI 1572

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2391 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 31 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office.

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 (“RHC”), 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 19 September 2019.

3.  Leave was given to the applicant to amend Form 86 to add the Torture Claims Appeal Board as respondent and the Director of Immigration as interested party and to amend the date of the Board’s Decision.

The applicant

4.  The applicant is a national of India. He came to Hong Kong on 3 May 2012 by using his Indian passport. He was permitted to stay for 14 days. He overstayed and was arrested by police on 27 April 2013. He lodged his non-refoulement claim on 25 June 2013.

5.  He claimed that if refouled, his life would be in danger because his creditor Tilak Raj would cause serious harm on him or even kill him for his default in loan repayment.

6.  He claimed that he came to Hong Kong because of the events below.

a.In 2013, he borrowed 1.5 million Indian Rupees from Tilak and pledged his truck to the bank in order to buy a truck for business. At the end of 2013, his business failed and the bank claimed possession of his truck. He was unable to pay money to Tilak.

b.From late 2013 to mid-2014, Tilak and his partner came to his home for repayment of loan. They threatened to kill him.

c.He went to Thailand and was repatriated back to India. He stayed in his friend’s home in Delhi.

d.On 4 July 2014, he returned to India because his father told him that Tilak agreed to extend time for him to repay. Shortly after his arrival in India, Tilak and his partner took him to their office where he was assaulted. He sustained bruises all over his body and his backbone was fractured. He had to receive surgery and hospitalized for 3 months.

e.He reported this incident to police, which did not take up the complaint.

f.  In August 2014, he paid 300,000 Indian Rupees to Tilak. Then he came to Hong Kong on 21 September 2014.

The Director’s Decision

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 6 November 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.

The Board’s Decision

9.  The applicant appealed to the Board against the Director’s Decision. He attended a hearing before the Adjudicator on 19 April 2017.

10.  By Decision dated 31 August 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.

11.  The Board considered the applicant’s evidence. It accepted that the applicant was indebted to Tilak and that Tilak had initiated civil proceedings against him for the loan. It also accepted, by giving him the benefit of the doubt, that he had been assaulted by Tilak and that police did not take up his complaint. Nevertheless, the Board refused his appeal for the reasons below.

a.This was a purely private matter though the applicant might have committed crime for dishonoured cheque. These would not invoke torture or CIDTP or persecution [63].

b.If the police would not act, there existed channels by which they could be made to act, such as an application to the District Superintendent or a Magistrate. See the UKHO Report at section 2.7.27. There are other means to deal with corruption in India [64].

c.The Board did not believe the money lender would kill him as he only looked for money [65].

d.State protection was available to him [67].

e.Internal relocation to Mumbai or Delhi would not be too harsh for him [84 & 86].

Application for leave to apply for judicial review

12.  The applicant filed Form 86 dated 29 October 2018 for leave to apply for judicial review of the Board’s Decision.

13.  He did not set out any reasons in his affirmation to show where the Board’s Decision is wrong.

DISCUSSION

14.  The applicant appeared before me and he confirmed that he was free to express himself before the immigration officer and the Board. His lawyer had explained the Director’s Decision to him. His friend had assisted him to understand the Board’s Decision.

15.  I put the Board’s findings to him and asked him if he had any comments. He said that he had no comments.

16.  It is obvious that the applicant failed to establish his claims because his case does not fall within any of the statutory provisions or the Convention for protection. The Board was clearly right in its application of the law on his case. I find nothing amiss in its assessment of the case.

17.  The Court of Appeal in Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14 held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them.  The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

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

CONCLUSION

19.  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