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

HCAL 1206/2019

[2024] HKCFI 117

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1206 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 26 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.  The applicant asked for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, a hearing was fixed for him on 19 April 2023. However, he was absent on the hearing date. Therefore, his application is dealt with on the papers.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant is a national of India. He last entered Hong Kong on 13 May 2015 as a visitor and was permitted to stay until 27 May 2015. He did not depart and had overstayed since 28 May 2015. On 29 May 2015, he surrendered himself to the Immigration Department. On 30 September 2015, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by members of Rashtriya Janata Dal (“RJD”) party due to the political problem.

5.  According to the applicant, he joined the Janata Daly United Party (“JDU”) in April 2014 and was responsible for assisting the election campaign. One the date of election, the members of RJD and JDU involved in a fight in which the applicant was threatened. After the fight, the applicant continued to receive telephone threats. In early May 2014, the applicant was hit by a car and he believed that it was done by the RJD members. He was hospitalized for four days. Moreover, he continued to receive phone calls of death threats. Afterwards, the applicant decided to quit college and move to other places. Subsequently, he took various trips and eventually decided to seek protection in Hong Kong. Details of his claim are set out at paragraph 7 of the Notice of Decision dated 15 December 2017 by the Director (the “Director’s Decision”).

The Director’s Decision

6.  The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“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 way of the Director’s Decision, the Director dismissed the applicant’s claim. In elaboration, the Director found that (i) the past events indicated that the applicant’s claimed risk of harm was not real or substantial [13]-[17]; (ii) state protection would be available to him [18]-[21]; and (iii) internal relocation was also a viable option [22]-[24].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 17 December 2018, the Board conducted an oral hearing for his appeal, during which he testified with the assistance of the interpreter [61].

9.  The Board recapped the applicant’s claim and summarized his oral testimonies. Having considered the evidence, the Board found that the applicant was not a credible witness [83]. It noted that the applicant was unable to offer detailed evidence in support of his claim nor was he able to explain why he failed to disclose certain evidence promptly before the Director [84]. The Board noted that there were new evidence that the applicant introduced at the oral hearing [88]-[91]. It found that the applicant’s explanations for such failure lacked credibility and concluded that these new pieces of information were recent inventions [92].

10.  Further, the Board also identified aspects that contained material inconsistencies, such as the applicant’s evidence about the car accident and his employment history [93]-[96]. It also noted that the applicant’s low level involvement with the JDU and the minor injuries he sustained in the fight indicated that he would not face risk of harm upon refoulement [97]-[99]. In passing, the Board observed that the applicant was unable to name a JDU candidate in the alleged election [101]-[102].

11.  In light of the aforesaid, the Board concluded that the center pieces of the applicant’s claim were not credible [103]-[104]. As a result, the Board rejected his claim and dismissed his appeal.

Application for leave to apply for judicial review of the Board’s Decision

12.  The applicant has filed Form 86 dated 6 May 2019 for leave to apply for judicial review of the Board’s Decision.

13.  In his affirmation in support of his application, the applicant said he considered that the Board’s Decision was unfair. He had referred to the findings of the Director and the Board for his argument. Since the Court should only consider the Board’s Decision in this application, I shall therefore refer to his arguments in relation to the Board, unless the Board’s decision is related to the Director’s Decision. The following are his main reasons.

(1)  He was not given legal representation and language assistance of an interpreter for his appeal and there is no translation for the Board’s Decision. The Board’s Decision was not translated to him.

(2)  The Board had wrongly exercised the case management powers in determining his case has no substance. He believes that the Immigration Department and the Board had adopted a biased approach in assessing his claim.

(3)  The Board had not attained the high standards of fairness.

DISCUSSION

14.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

15.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

16.  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.”

17.  The Board had, for the reasons given in paragraphs 9, 10 and 11, supra rejected the applicant’s evidence on the facts of his claim.

18.  As to the grounds raised by the applicant in paragraph 13, supra, they do not assist his application.

19.  The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178 held:

“22. This Court has repeatedly held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration. We do not find anything amiss arising from lack of legal representation in the process before the Board.”

20.  In relation to interpretation service, the Court of Appeal Re Khan MD Omar [2019] HKCA 803, 19 July 2019 held:

“I8. … … Interpreter services were provided at hearings at every stage. Such services were also available at the time when the applicant was assisted by Duty Lawyer. We do not accept that the alleged lack of language assistance at other time would render the process unfair in the present case.”

21.  As to ground (2) and ground (3), they are the applicant’s personal opinions or comments without evidence in support of them. The Court of Appeal in Salim Ahmed alias MD Salim [2020] HKCA 244 held:

“20. … … general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case: Re Mizan Sikder [2019] HKCA 20 and Ibrahim v Simon Russell [2019] HKCA 1327.” See also Re Haider Khalil [2021] HKCA 223 [16].”

22.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

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

CONCLUSION

24.  I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. 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