HKCFI 2020
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1136 of 2017
| Malkeet Singh
|Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
|Director of Immigration
||Putative Interested Party
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s Decision (Ord. 53 r. 3)
||consideration of documents only
||consideration of documents and oral submission by the Applicant in open court
Order by Deputy High Court Judge Josiah Lam:
Leave to apply for judicial review be refused.
Observations for the Applicant
1. The Applicant is a national of India. He is now aged 27 (DOB: 10 June 1992).
2. The Applicant left India for Thailand on 17 May 2013. He arrived in Hong Kong on 22 May 2013. He was refused permission to land but he raised a torture claim through a legal representative on 23 May 2013.
3. The Director of Immigration (“the Director”) rejected the Applicant's torture claim on 29 July 2013 [“the Director's 2013 decision”]. There was no appeal to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”).
4. The Applicant asked for non-refoulement protection further by way of written representation on 10 March 2014. The Director considered the Applicant's case with respect to persecution risk and BOR3 risk (risk of torture or cruel, inhuman or degrading treatment or punishment). On 12 March 2015, the Director rejected the Applicant's non-refoulement claim with respect to those two applicable grounds [“the Director's 2015 decision”].
5. The Applicant appealed against the Director's 2015 decision to the Board on 26 March 2015. The Board rejected his appeal on 14 December 2016. In that decision, the Adjudicator found him ‘wholly unreliable’. He did not believe the Applicant’s claim. The Adjudicator rejected the Applicant’s appeal against the Director's 2015 decision on 14 December 2016 [“the Board's 2016 decision”].
6. On 5 June 2017, the Director further considered the Applicant’s case with respect to the last applicable ground: BOR2 risk (risk of violation of the right to life) [“the Director's 2017 decision”].
7. The Applicant appealed against the Director's 2017 decision late to the Board, only on 14 August 2017. The Adjudicator dismissed his late appeal on 12 December 2017. [“the Board's 2017 decision”]
8. The Applicant applied for leave for judicial review on 22 December 2017. In Form 86, he named the Board as respondent and the Director as interested party. The Applicant stated he sought relief of the Board's decision dated 12 December 2017. The Board's 2017 decision was only related to BOR2 risk. The Applicant did not make the Board's earlier decision dated 14 December 2016 a subject matter of the current application. [Any application for leave to apply for judicial review of the Board's 2016 decision would be time-barred in the absence of any good reason by the time the Applicant filed the current application on 22 December 2017.]
9. The Applicant made inconsistent allegations at different stages of the screening process before the Director and the Adjudicator.
10. On 23 May 2013, the Applicant arrived in Hong Kong. He was refused entry. The Applicant summoned a ‘lawyer’ to the airport. After meeting that person, the Applicant made a written representation stating he and the two persons travelling with him to Hong Kong had reported a drug related crime to the India police. The drug dealer found out his identity and tried to kill him.
11. The Applicant later claimed to the Director that he fell in love with a girl called Saroj. She was the daughter of the Chief Minister of Rajistan. The Chief Minister, Ashok Gehlot, disapproved their relationship and threatened to kill him.
12. In 2016, the Applicant appealed to the Board against the Director's 2015 decision relating to persecution risk and BOR3 risk. The Adjudicator found out from country-of-origin information ("COI") that Ashok Gehlot had only one daughter called Sonia, who was married and lived in Mumbai. The Applicant then changed his claim of risk, saying he got life-threatening phone calls from an unknown person. The Adjudicator found him wholly unreliable.
13. In his appeal against the Director's 2017 decision...