Abdul Basheer v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Another

HCAL1728/2018

[2019] HKCFI 1558

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1728 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 to apply for judicial review against the respective decisions of the Adjudicator 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 arrived in Hong Kong on 11 November 2014 as a visitor and was permitted to stay until 18 November 2014. He overstayed and was arrested by police on 21 November 2014. He was referred to the Immigration Department for investigation. On 24 November 2014, he lodged a non-refoulement claim.

3.His reason for his application is that his life would be in danger if he returned to India because he would be harmed or killed by Raja Singh (“RS”), alias Kishim Singh, a member of the Legislative Assembly, who bore grudges against him.

4.In his statements given to the Director and the Board, he claimed that he was a Muslim and was employed by RS as one of his bodyguards. On the night of 13 May 2014, he heard from a neighbour that some people were burning Sikh flags in Kishan Bagh no. 9, a district about 25 minutes away by car from his home. The next day, he read in a newspaper that the people who had burnt the flags were Muslims. On the same day, RS held a meeting that he would get some armed gangsters to attack and kill the Muslims in that area the next night. The applicant leaked the information to the Muslims, who fled the area before the armed gangsters arrived. RS suspected that the applicant had leaked the information to the Muslims as other bodyguards were Hindus. He dismissed the applicant and threatened to kill him. Thereafter, the applicant found that RS’s people were looking for him. He had hidden himself in Mumbai for six months and nothing happened. He decided to come to Hong Kong as he knew that RS’s people were still looking for him.

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.  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”).

6.By Notice of Decision dated 16 October 2017 (“the Director’s Decision”), the Director rejected his claim for the reason that his claim was not substantiated.

The Board

7.The applicant appealed to the Board and he attended a hearing before the Adjudicator on 23 April 2018.

8.By Decision dated 17 August 2018 (“the Board’s Decision”), the Board refused his appeal and confirmed the Director’s Decision.

9.The Board considered the applicant’s case carefully and found that the applicant’s evidence was incredible and rejected it. The reasons are that it had taken into consideration section 37ZD of the Ordinance as the applicant did not make the non-refoulement claim immediately after he came to Hong Kong and he simply overstayed until he was arrested [61]; that it did not believe RS would employ a Muslim like the applicant [62]; the inconsistency in the evidence [63]; the inconsistency of the incident on 13 May 2014 followed by a planned revenge attack by RS’s gangsters on 15 May 2014 as compared with the Times of India report [64]. The Board could not find that there was any risk to the applicant that if refouled he would face death, torture, CIDTP or persecution of RS or his associates [65].

Application for leave to apply for judicial review

10.In his Form 86 dated 23 August 2018, under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave for judicial review of the Director’s Decision and the Board’s Decision respectively.

11.In his affirmation in support of his application dated 23 August 2018, the applicant relied upon the following grounds:

(1)  he was not provided with translation service at the Duty Lawyer Service and no assistance in completing the Notice of Appeal or in understanding the hearing bundle;

(2)  the Director had put too much weight on the Country of Origin Information (“COI”) that does not reflect the true situation in India – the reason for not reporting to police was because it was no use and the police would not take action;

(3)  the Director cherry-picked the COI to come to his decision; and

(4)  the Board’s determination 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 [2018] HKCFI 2647, HCAL 806/2018, 5 December 2018, I had held that the 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 considered his appeal and made its Decision.

13.The applicant has not set out any exceptional circumstances.

14.Also, the Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap 115 in relation to the powers of the Director and the Board, decided:

“45.  All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”

15.The applicant’s application for leave to apply for judicial review of the Director’s Decision therefore fails in limine. I dismiss his application.

The Board’s Decision

16.The applicant appeared before me. He confirmed that he had no complaint against either the Immigration officer or the Adjudicator. Their respective Decisions had been explained to him by his lawyer and his friend respectively. He considered that he had had a fair hearing before the Board.

17.It is obvious that as the Board rejected all of his evidence on the facts of his case, he has no factual basis in support of his claim.

18.Grounds (1) and (4) are simply not true as they are inconsistent with what the applicant said in court. They fail.

19.Grounds (2) and (3) are his opinions without any evidence in support of them. They do not stand.

20.The applicant fails to show that he has a reasonable chance of success in his proposed judicial review.

CONCLUSION

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

Dated the 17^th day of June 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