Ahmad Ershad v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office and Another

HCAL 2393/2018

[2020] HKCFI 220

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2393 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.This is the applicant’s application for leave to apply for judicial review against the decision 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 29 July 2009 as a visitor and was allowed to stay for 14 days. He overstayed and was arrested by police on 2 September 2009.  On 2 September 2009, he lodged his torture claim under Articles 1 and 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“torture risk”), which was dismissed by the Director on 23 October 2013. On 29 November 2013, he raised a claim based on risk of harm under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“BOR 3 Risk”). However, he withdrew his application on 21 January 2014 and was repatriated to India on 9 February 2014. He came to Hong Kong again on 20 November 2016 as a visitor. He overstayed and was arrested on 15 December 2016. On 15 February 2017, he lodged a non-refoulement claim.

3.His reason for his application is that if refouled, he would be harmed or killed by his creditor Aslam because he was unable to repay his loan and interest.

The Director’s Decision

4.The Director considered his application only 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 under RC”).

5.By Notice of Decision dated 26 June 2018 (“the Director’s Decision”), the Director rejected his claim for the reason that his claim was unsubstantiated.

The Board’s Decision

6.The applicant appealed to the Board but he had written to the Board on 1 October 2018 not to hold any oral hearing and it should determine his appeal on the papers only.

7.By Decision dated 19 October 2018 (“the Board’s Decision”), the Board refused his appeal and confirmed the Director’s Decision.

8.The Board considered the applicant’s evidence and found that his evidence was unreliable, relying upon the statutory provisions of section 37ZD, that he did not raise torture claim or protection immediately after his arrival in Hong Kong, that he had committed crimes in Hong Kong [31 & 31]. It also considered that the creditor would not spend money and effort in locating him after he returned to India and that internal relocation was an option open to him [17].

Application for leave to apply for judicial review

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

10.He relied upon the grounds against the Director’s Decision and the Board’s Decision:

1. the Director failed to maintain high standard of fairness and his conduct was Wednesbury unreasonable;

2. the Director failed to consider the issue of state acquiescence;

3. the Director had not considered collusion between the police and the high ups of political circles and the misconduct of the police officials;

4. the Director failed to give sufficient weight to the Country of Origin Information (“COI”) which supported the applicant’s case;

5. the Director elected to adopt COI which suited his pre-conceived conclusion, which is unfair to the applicant;

6. the Director failed to appreciate that corruption and incompetency of the administration in the applicant’s country; and

7. the Adjudicator failed to give him sufficient time and chance to arrange relevant evidence for his appeal.

DISCUSSION

The Director’s Decision

11.In the decision 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 held that the applicant could not apply for judicial review of the Director’s Decision without exceptional circumstances because he had appealed to the Board, which was established by statute with wider power of investigation into the facts of the matter. The Board had already heard the appeal and made its Decision.

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

13.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.”

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

The Board’s Decision

15.The applicant appeared before me. He confirmed that he had been able to speak freely and tell his stories fully to the Immigration officer. His lawyer had explained the Director’s Decision to him. He also confirmed that he did not want a hearing before the Board. His friend had explained the Board’s Decision to him.

16.It is obvious that as the Board rejected all of his evidence on the salient facts in support of his claim, in particular, that he came to Hong Kong for protection. Therefore, he has no factual basis for his claim.

17.The Court of Appeal held in Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14

“13. Evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision makers….

14.  Determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.”

18.The Board is entitled to take into consideration that the applicant failed to take advantage of a reasonable opportunity to claim non-refoulement protection under section 37ZD (1)(b) of the Ordinance.

19.Those grounds in relation to the Director are irrelevant as the application should only apply to the Board’s Decision.

20.Ground (7) is also irrelevant as the applicant cannot complain because he did not want a hearing himself.

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

CONCLUSION

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

Dated the 20^th 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