Inayath Ali v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Another

HCAL1134/2018

[2019] HKCFI 396

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1134 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only;     or
	consideration of the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant (Order by Deputy High Court Judge K.W. Lung):

THE APPLICATION

1.This is the applicant’s application for leave for judicial review against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”).

The applicant

2.The applicant is an Indian national. He came to Hong Kong as a visitor on 31 July 2016 and was permitted to stay until 14 August 2016. He overstayed without permission of the Director. On 15 August 2016, he surrendered to the Immigration Department. On 17 August 2016, he lodged his non-refoulement claim.

3.The applicant claimed that he was in fear of being harmed or even killed by members and supporters of the Bharatiya Janata Party (“BJP”) if he returned to India, because he was affiliated with the All India Majlis-e-Ittehadul Muslimeen (“MIM”).^[1]

4.In his statements given to the Director and the Board, the applicant said that since 2016, he was pressed by BJP not to support MIM. In June 2016, he was kidnapped by the BJP people to a place where he was beaten up and stayed for two days. He was finally released and left on a roadside. He was rescued by other people. He recovered after 3 or 4 weeks. He did not report this to the police, fearing that the police would not take any action. He stayed with his uncle and was advised to leave India. So he came to Hong Kong in July 2016.

The Director’s Decision

5.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.  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 under RC”).

6.By Notice of Decision dated 29 August 2017 (“the Director’s Decision”), the Director refused his application on the ground that he failed to substantiate his claims. See §4.

The Board

7.The applicant appealed to the Board. He attended a hearing before the Adjudicator on 24 April 2018.

8.The Adjudicator had conducted an inquiry with the applicant. She accepted the evidence that he had given to the Director. She assessed the evidence herself. At paragraph 87 of the Board’s Decision dated 5 June 2018 (“the Board’s Decision”), she said:

“The Appellant’s claim and evidence given in relation to his fear that he will be subjected to ill-treatment inflicted by the BJP people if he returns to India are based entirely on his speculation.”

9.On this basis, she rejected the applicant’s appeal on all the above risks’ claims.

Application for leave for judicial review

10.By Form 86 dated 19 June 2018, under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave for judicial review of the decisions of the Director and the Adjudicator of the Board respectively.

11.In his affirmation in support of his application filed on 19 June 2018, he set out the reasons in support of his application. It is a 10-page disorganized, narrative with repetitions. I shall summarize his specific grounds below:

(1)  the Director and the Adjudicator did not meet the high standard of fairness;

(2)  he was unable to attend the interview with the Director because he was sick; but the Director did not arrange another interview for him and he simply assessed his case;

(3)  the Director had selected the Country of Origin Information (“COI”) which were against his case and made his determination;

(4)  he was not legally represented in his appeal against the Director’s Decision;

(5)  he was not provided with translation of his answers to the Director’s questions;

(6)  the hearing bundle for the appeal was delivered to him shortly before the appeal hearing;

(7)  the majority of the documents in the hearing bundle was written in English which he required assistance; and

(8)  the Board’s Decision was in English and it was not translated to him.

DISCUSSION

The Director’s Decision

12.In my view, the applicant is not entitled to apply for judicial review of the Director’s Decision without exceptional circumstances.  In Haider Zeeshan v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office and The Director of Immigration HCAL 806/2018, I had held that an applicant, without exceptional circumstances, is not entitled to apply for judicial review of the Director’s Decision because the Board has been established by legislation to deal with appeals against the Director’s Decision and this Board has wider power than this Court to make investigations in the matter. The Board had heard his appeal and made its Decision.

13.Since the applicant has not set out any exceptional circumstances, his application for leave simply fails in limine.

14.For the reasons above, I dismiss the applicant’s application for leave for judicial review of the Director’s Decision.

The Board’s Decision

15.The applicant appeared before me as he requested a hearing for this application.

16.His grounds under paragraph 11 were put to him for clarification.

17.He said that shortly after he had received the Hearing Bundle, he had sought assistance from his friend, who explained the contents to him. He had no complaint against the Director or the interpreter.

18.When he attended the appeal hearing, he understood the proceedings. Although he was not legally represented at the hearing, he understood the questions put to him by the Adjudicator through the interpreter. He had no problem with the questions and he had answered them honestly. He had no complaint against the Adjudicator or the interpreter.

19.The only complaint against the Director and the Adjudicator is that they did not believe his story and turned him down.

20.Ground (1) is his opinion, unsubstantiated by any evidence.

21.Ground (2) does not constitute a valid ground as under section 37ZI(2) provides that the Immigration officer may make the decision whether to accept the applicant’s non-refoulement claim even if the applicant did not attend the interview scheduled by the Immigration officer under section 37ZB(1). This is within the Immigration officer’s discretion.

22.Ground (3) fails because the Director has the discretion to give whatever weight to the evidence relating to COI. The applicant has not even been able to identify what was wrong with the exercise of his discretion.

23.Grounds (4) to (8) are irrelevant in light of what the applicant had said in the hearing before me.

24.Having considered the evidence and for the reasons above, I consider that the applicant fails to show that he has any reasonable chance of success in his proposed judicial review.

CONCLUSION

25.Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave for judicial review. Accordingly, I dismiss his application.

Dated the 22^nd day of February 2019

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