Asim Ali v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1618/2018

[2020] HKCFI 70

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1618 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

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

Following;

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

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant is not legally represented and he did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court (“RHC”), by letter, invited the applicant to appear before it in order to explain the above to them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant attended the hearing on 22 August 2019.

2.Leave was given to the applicant to amend Form 86 by deleting the Director of Immigration (“the Director”), to be replaced by the Appeal Board/Non-refoulement Claims Petition Office (“the Board”) as the respondent.

The applicant

3.The applicant is an Indian national. He came to Hong Kong on 11 May 2015 illegally by cargo vessel. On 12 May 2015, he surrendered to police for illegal remaining. On 14 May 2015, he lodged a non-refoulement claim.

4.He claimed that if refouled, his life would be endangered by the family members of his late employee Bilal Nakshali Turke (“Bilal”) as they falsely accused him of having murdered Bilal.

5.He was in embroidery business in India and Bilal was his employee. In 2014, Bilal told him that he was going out to have dinner with his friends. Then he received a phone call telling him that Bilal was not feeling well. He went to the scene and found Bilal looking pale. He sent Bilal to a hospital. Shortly after arrival at hospital, Bilal passed away. Bilal’s family suspected that he had murdered Bilal. They were armed with pistol and looked for him. He escaped to other places to stay. In August 2014, his brother was assaulted by five or six people. The matter was reported to police. The police did not follow up the matter. His mother told him Bilal’s family was still looking for him. He considered that Bilal’s family was resourceful and well connected with the Indian Government and that internal relocation was not possible. He decided to come to Hong Kong.

The Director’s Decision

6.The Director considered his application in relation to the following risks:

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

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”).

7.By Notice of Decision dated 14 August 2017, (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision and he attended a hearing before the Adjudicator on 7 June 2018.

9.By Decision dated 7 August 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.

10.The Board considered the applicant’s evidence. It set out its reasons in its Decision in paragraphs 12, 13 and 14. It came to the conclusions below.

a. It accepted that Bilal died while he was working for the applicant.

b. Bilal’s family had mistaken the situation when they thought the applicant had killed Bilal.

c. It did not accept his evidence on the following issues for the reasons that the applicant had exaggerated his case and he had given inconsistent evidence in his previous statements or his account of fact was inherently inconsistent or defied logic:

i. that Bilal’s family has connections with the Indian Government and that they are resourceful; and

ii. that he cannot return to anywhere in India because of the enmity of Bilal’s family towards him;

iii. that Bilal’s family wants to kill or cause him grave harm; and

iv. that internal relocation is not possible.

Application for leave to apply for judicial review

11.He filed Form 86 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of his application, he said that the Director [and the Board] had failed to consider all the matters raised in his claim or give adequate reason for his decision.

DISCUSSION

13.The applicant appeared before me. He confirmed that he was at liberty to state his case before the immigration officer and the Adjudicator.

14.The Court of Appeal in Bah Mohamed Bachir v Torture Claims Appeal Board / Non‑Refoulement Claims Petition Office and Director of Immigration [2019] HKCA 462, 18 April 2019 held:

“15.     The role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non refoulement cases the court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the court should not usurp the role of the Board.  Assessment of evidence and Country of Origin Information (“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.”

15.The Board has, in the Board’s Decision, set out the reasons for the findings. The applicant’s grounds of objection are his opinions without any reasons or specifications in support of them.

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

CONCLUSION

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

Dated the 3^rd day of January 2020

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