Alam Mohammad Mahtab v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1771/2018

[2020] HKCFI 817

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1771 of 2018

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 of the Decisions respectively dated 5 May 2017 and 10 August 2018 of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board’s Decisions”).

2.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, 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 did not attend the hearing on 19 November 2019. I shall proceed to consider his application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, the Court, on its own motion, amended Form 86 by deleting the Board and replaced it by Director of Immigration (“the Director”) as interested party.

The applicant

4.The applicant is an Indian national. He came to Hong Kong on 15 April 2015 through Thailand. He was refused entry.  He lodged a non-refoulement claim on 16 April 2015.

5.He claimed that if refouled, he would be harmed or even killed by his enemies Surinder Yadan, Pratap Singh and the guerrilla group Naxalite because of a land dispute and his change of political support from Samajwadi Party (“SP”) to Indian Congress Party (“INC”).

6.He and his father were supporters of SP. His enemies were also SP’s supporters. They asked his father to sell a piece of land to them at a price far below the market price. His father refused. Initially, they kept on harassing his father and him for the land. In late 2011, about ten men dressed in Naxalite came to his home. They threatened his father to sell the land to them. They slapped his father and him on their face.

7.In February 2012, his father transferred the title of the land to him. One morning in late February, his father and himself were attacked by their enemies with knives and machine guns’ butts. They were seriously injured and had to be hospitalized. He left to United Arab Emirates in April 2012 where he found a job there. In the same year, his father passed away. In July 2014, he returned and he joined INC. The CP members were unhappy about it and threatened to kill him. He moved around to live in other places. But he saw people in Naxalite dress around him. He was scared and he took his friend’s advice to come to Hong Kong.

The Director’s Decisions

8.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”).

9.By Notice of Decision dated 8 July 2015 and Notice of Further Decision dated 30 June 2017 (“the Director’s Decisions”), the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that the level of risk of harm as claimed upon his return was low [11]; that state protection was available to him [13] and internal relocation was an option open to him [14]. His claim under BOR2 risk was not established.

The Board’s Decisions

10.The applicant appealed to the Board against the Director’s Decisions. He attended a hearing before the Adjudicator on 25 April 2016.

11.By the Board’s Decisions, the Board rejected his appeal and confirmed the Director’s Decisions.

12.The Board considered the applicant’s evidence and in its Decision dated 5 May 2017, found that he was unable to make out a case in respect of the Persecution risk, BOR 2 risk or Torture risk [48] for the reasons stated under this paragraph and that internal relocation was a viable option open to him [54]. In its Decision dated 10 August 2018, it found that the applicant was unable to establish BOR 2 risk.

Application for leave to apply for judicial review

13.The applicant filed Form 86 dated 28 August 2018 for leave to apply for judicial review of the Board’s Decisions.

14.In his affirmation in support of his application, he did not set out the grounds in support of his application. He did not say what error the Board had committed in coming to its decision.

DISCUSSION

15.In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that 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 and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

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

CONCLUSION

17.I therefore refuse to grant leave to the applicant to apply for judicial review. Accordingly, I dismiss his application.

18.By an affirmation dated 16 March 2020, the applicant applied to withdraw his application because his problem had been solved and he wanted to go back to his own country.

Dated the 15^th day of May 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