Case Document

100%Judiciary

HCAL 1698/2018

[2020] HKCFI 1101

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1698 of 2018

BETWEEN

	Ahmad Sarfaraz	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only; or
	consideration of documents and oral submission 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:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Decision dated 26 July 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 was amended by deleting the Director of Immigration (“the Director”) as proposed respondent and deleting the Board as interested party.

The applicant

3.The applicant is an Indian national. He came to Hong Kong on 9 September 2014 and was allowed to stayed until 23 September 2014. He overstayed. On 29 September 2014, he surrendered himself to the Immigration Department. On 16 December 2014 he lodged his non-refoulement claim.

4.He claimed that if refouled, he would be harmed or even killed by his neighbour and his people because he had a land dispute with him and he had different religion from him.

5.Since 2007, his neighbour Vinod had been extending his farm’s boundary into the applicant’s farmland, which was adjacent to Vinod’s farmland. In 2014, the government had made a survey and discovered that Vinod had trespassed four meters into his farmland. He asked Vinod to return his land to him. Vinod refused and they developed into a heated argument. Vinod gathered the local gangsters who were supporters of the Nexalites, an influential organization locally, together they assaulted the applicant with sticks. The applicant sustained injuries and received medical treatment in a hospital. The hospital staff reported the matter to police. Police arrested Vinod and charged him. Vinod was convicted and was sentenced to six months’ imprisonment. Vinod threatened that he would kill the applicant after his discharge from prison. He went to the applicant’s home to look for him after his discharge. The applicant moved to live in Calcutta. Vinod learned about this and he and his supporters also went to Calcutta to look for him. His friend advised him to go to Hong Kong to seek asylum. He took his friend’s advice and came to Hong Kong in September 2014.

The Director’s Decision

6.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”).

7.By Notice of Decision dated 21 December 2017, the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that the level of risk as claimed was low [13]; that state protection was available to him [17] and internal relocation was an option open to him [21]. His claim under BOR2 risk was not established.

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision. He attended a hearing before the Adjudicator on 10 May 2018.

9.By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decision.

10.The Board considered the applicant’s evidence and found at paragraph 45 of the Board’s Decision that it did not accept all the factual bases on which the applicant relied in support of his claim: the dispute between him and Vinod; assault by Vinod or his people; Vinod having been imprisoned; the applicant having avoided Vinod by moving to other places. It found that the applicant had manufactured the totality of his claim in an attempt to provide a basis for non-refoulement protection in Hong Kong. See §§9-45 of the Board’s Decision. However, though the Board came to the above conclusion, it nevertheless considered that relocation was an option open to him if he returned to India. See paragraphs 46-47.

Application for leave to apply for judicial review

11.The applicant filed Form 86 on 21 August 2018 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of his application, he simply said that his life remained in danger if he returned to India.

DISCUSSION

13.The applicant appeared before me. He confirmed that he was treated fairly by the immigration officer and the Adjudicator of the Board. His lawyer had explained the Director’s Decision to him and his friend had explained the Board’s Decision to him.

14.He had no comments on the Board’s Decision.

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.

Dated the 9^th day of June 2020

	(Mike Mak)
	for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 9/6/2020 Ahmad Sarfaraz Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 9/6/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 9765/18/1/38/IN1836 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 3575/17 (formerly RBCZ/10132/15) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

Cites 1 case

Cases cited in this judgment

Nupur Mst v. Director of Immigration

Cited by 1 case

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Re Ahmad Sarfaraz

Court of Appeal06 May 2022

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