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HCAL 1776/2018
[2020] HKCFI 118
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1776 of 2018
BETWEEN
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Sharma Dharampal |
Applicant |
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and
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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and
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge K.W. Lung:
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 13 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 19 November 2019.
3. Leave was granted to the applicant to amend Form 86 by deleting the Board and replaced it by Director of Immigration (“the Director”) as interested party.
The applicant
4. The applicant is an Indian national. He came to Hong Kong on 1 April 2014 as a visitor and was allowed to stay until 5 April 2014. He overstayed and was arrested by police 17 April 2014. He was referred to the Immigration Department on 18 April 2018. He lodged a non-refoulement claim on 19 April 2014.
5. He claimed that if refouled, he would be harmed or even killed by his creditor as he was unable to repay the loan. He had borrowed money from the creditor for his business, which ran down and he was unable to repay. He was forced to sign papers for increasing the interest that he had to pay for his debt. In any event, he had to close down his business and obtain an employment. What he earned was not enough to pay the interest. He was pressed by the creditor, who was a member of the Indian National Lokdal Party. He was depressed. His friend advised him to leave India for Hong Kong. He took the advice.
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 27 September 2017, the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that there were no substantial grounds for believing that he would be harmed or killed by his creditor upon his return to India [14]; that state protection was available to him [20] and internal relocation was an option open to him [26]. His claim under BOR2 risk was not established.
The Board’s Decision
8. The applicant appealed to the Board against the Director’s Decision. He attended a hearing before the Adjudicator on 16 July 2018.
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 it accepted his evidence [31]. However, it found that it was only a remote or speculative risk and therefore not a real risk of him losing his life at the hands of the creditor and that it was a private dispute between the applicant and the creditor, not for Convention reason and that there would be any active or passive acquiescence on the part of the Indian authorities [33]. It accepted that if he returned to his home village, there might be more than a remote or speculative risk the creditor would inflict CIDTP against the applicant [34]. However, the Board found that internal relocation was an option open to him [42]. The applicant had failed to establish any of the risks claimed. See §§45-53 of the Board’s Decision.
Application for leave to apply for judicial review
11. The applicant filed Form 86 dated 29 August 2018 for leave to apply for judicial review of the Board’s Decision.
12. In his affirmation in support of his application, he did not set out the grounds in support of his application. He did not say what error the Board had committed in coming to its decision.
DISCUSSION
13. In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal 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.
14. The applicant is unable to show that he has reasonable prospect of success for his intended judicial review. However, when preparing this decision, I received a letter from the applicant asking me to cancel his application because he had solved all his problems and he wanted to go back to his own country.
CONCLUSION
15. I therefore refuse to grant leave to the applicant to apply for leave for judicial review. Accordingly, I dismiss his application.
Dated the 9th day of January 2020
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(Mike Mak) |
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for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must: |
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 9/1/2020
Sharma Dharampal
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 9/1/2020
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 8727/17/10/57/IN1648
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 2101/17 (formerly RBCZ 3000819/14)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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