Your World of Legal Intelligence
 Hong Kong | 1-800-335-6202

Subhash Chander v Torture Claims Appeal Board / Non-refoulement Claims Petition Office

Judgment Cited authorities 15 Cited in 1 Precedent Map Related
Vincent
Judgment Date18 February 2021
Neutral Citation[2021] HKCA 175
Year2021
Judgement NumberCACV340/2020
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV340/2020 SUBHASH CHANDER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 340/2020

[2021] HKCA 175

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 340 OF 2020

(ON APPEAL FROM HCAL NO 1694 OF 2018)

_____________________

BETWEEN
SUBHASH CHANDER Applicant
and
TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE Putative Respondent
and
DIRECTOR OF IMMIGRATION Putative Interested Party

_____________________

Before: Hon Lam VP and Yuen JA in Court
Date of Hearing: 8 February 2021
Date of Judgment: 18 February 2021

___________________

J U D G M E N T

___________________

Hon Yuen JA (giving the Judgment of the Court):

Introduction

1. On 30 July 2020, Deputy High Court Judge K W Lung (“the Judge”) refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 16 August 2018. In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 15 February 2017 rejecting the applicant’s non-refoulement claim.

2. On 10 August 2020, the applicant filed a Notice of Appeal against the Judge’s decision.

Background

3. The applicant is an Indian national. He arrived in Hong Kong on 7 October 2014 and was refused permission to land. He then lodged a non-refoulement claim on the same day.

4. The applicant’s claim was based on the fear that, if he returned to India, he would be harmed or even killed by his girlfriend’s relatives who objected to their relationship. The factual background was succinctly summarized by the Judge in [6] – [8] of the Form CALL-1 ([2020] HKCFI 1745).

5. By notices of decision dated 18 December 2014 and 15 February 2017, the Director rejected the applicant’s claim on all applicable grounds and determined it against him. The former notice of decision covered the grounds of BOR 3 risk[1], persecution risk[2], torture risk[3], while the latter covered BOR 2 risk[4].

6. The applicant appealed to the Board against the Director’s decisions. For the appeal against the Director’s decision of 18 December 2014, the oral hearing was originally fixed for 10 March 2015 but rescheduled for 21 April 2015 as the applicant did not attend on the first date. At the hearing of 21 April 2015, he declined to answer any questions by the Board. The Board found that the applicant’s story was unreliable due to irreconcilable inconsistencies in his evidence, and because his core allegations were unsupported in circumstances where one would reasonably expect objective support to be adduced. The Board concluded that there was no real risk of harm, and as such considered it unnecessary to consider whether internal relocation was viable. Thus on 8 June 2015, the Board dismissed the applicant’s appeal against the Director’s decision dated 18 December 2014 in relation to BOR 3 risk, persecution risk, and torture risk.

7. The applicant did not seek leave to judicially review the Board’s decision of 8 June 2015.

8. For the appeal against the Director’s decision dated 15 February 2017, the Board decided that it was not necessary to hold a hearing in relation to BOR 2 risk, because there were no new materials or evidence to consider, and nothing that warranted an oral hearing. Based on the factual findings of the Board’s decision of 8 June 2015, the Board concluded that there was no BOR 2 risk. Thus on 16 August 2018, the Board dismissed the applicant’s appeal against the Director’s decision dated 15 February 2017.

Decision of the court below

9. On 21 August 2018, the applicant sought leave from the court to apply for judicial review against the Board’s decision of 16 August 2018. He did not state any grounds for seeking relief in either his Form 86 or affirmation in support, though in his affirmation he stated that he wanted his case to be heard fairly and on “humanly possible ground”.

10. Upon consideration of the documents only, on 30 July 2020 the Judge refused to grant leave to apply for judicial review. The reasons for the refusal were set out at [17] – [20] of the Form CALL-1 ([2020] HKCFI 1745, HCAL 1694/2018) as follows:

“17. It is obvious that the Board had rejected all the facts in support of his application. As such, he has no factual basis for his claim. Humanitarian ground does not come into play in his application.

18. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held “13.… …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.”

19. There is no evidence to show that the Board erred in the finding of the facts or the application of the laws to his case.

20. The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.”

Appeal to this Court

11. On 10 August 2020, the applicant filed his Notice of Appeal against the Judge’s decision. His ground of appeal was that the Board disregarded his...

To continue reading

Request your trial
1 cases
  • Subhash Chander v Torture Claims Appeal Board / Non-refoulement Claims Petition Office
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 27 September 2021
    ...Hon Yuen JA (giving the Judgment of the Court): 1. This court (Hon Lam VP and Yuen JA) handed down judgment on 18 February 2021 ([2021] HKCA 175) (“the Judgment”) dismissing the applicant’s appeal against an order of DHCJ K W Lung (“the Judge”) given on 30 July 2020 refusing to give the app......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT