Case Document

100%Judiciary

HCAL 1809/2018

[2020] HKCFI 1479

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1809 of 2018

BETWEEN

	Mohammed Afsar Ali	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent

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 Applicant being absent 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 30 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Further 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 CACV 8/2018, [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 scheduled on 14 January 2020. 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, Form 86 was amended by deleting the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) as interested party.

The applicant

4.The applicant is an Indian national. He came to Hong Kong on 23 November 2013 as a visitor and was allowed to stay until 7 December 2013. He overstayed and surrendered himself to the Immigration Department on 3 March 2014. He lodged a non-refoulement claim on the same day.

5.He claimed that if refouled, he would be harmed or even killed by his wife’s family because of their opposition to his marriage.

6.He came from a Muslims family and his wife from a Hindu family. They married despite opposition from his wife’s family. His wife converted into Muslims. Her family came to his home and raised objection. He and his wife therefore eloped and lived in another place. Her family went to the applicant’s home from time to time demanding their whereabouts. They finally found out the place where they lived. They forced his wife to go with them and they locked her up at home. He decided to leave India for Hong Kong for asylum on 11 November 2013.

The Director’s Decisions

7.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”).

8.By Notice of Decision dated 31 July 2014 (“the Director’s Decision”) in respect of Torture risk, BOR 3 risk and the Persecution risk, and Notice of Further Decision dated 4 January 2017 (“the Director’s Further Decision”) in respect of BOR 2 risk, the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that the level of risk if he returned to Pakistan was low [14]; that alternative avenues to seek justice were available to him [20] and internal relocation was an option open to him [23]. His claim under BOR 2 risk was not established. See the Director’s Further Decision paragraph 6.

The Board’s Decisions

9.The applicant first appealed to the Board against the Director’s Decision. He attended a hearing before the Adjudicator on 18 November 2014.

10.By the Board’s Decision dated 3 March 2015 (“the Board’s Decisions”), the Board rejected his appeal and confirmed the Director’s Decision.

11.The Board considered the applicant’s evidence and found that it did not accept the Certificate of Marriage produced by the applicant as a piece of reliable evidence [26]; that there was no evidence that a public official was involved [36]; there was no evidence of acquiescence on the part of the government [39]; that there was not any evidence of lack of state protection for him [44]; that the applicant had suffered any form of torture under section 37U of the Ordinance [45]; that he was only subjected to threats but he had made no complaint to police [57]; that there was no evidence to show that there was a well-founded fear of persecution [70] and finally that internal relocation was an option open to him if he were really in danger, which the Board did not accept [81].

12.The applicant did not apply for leave to apply for judicial review of the Board’s Decision.

13.For the appeal against the Director’s Further Decision, the applicant’s appeal was 5 weeks late [17]. The applicant’s explanation was that he did not receive the Director’s Further Decision until 10 February 2017. Having considered the evidence, the Board did not accept this explanation. The Board then proceeded to consider the merits of his case and found that BOR 2 risk was not established. On this basis, by the Board’s Further Decision, the Board refused to grant extension of time for his late filing of the Notice of Appeal against the Director’s Further Decision.

Application for leave to apply for judicial review

14.The applicant filed Form 86 on 3 September 2018 for leave to apply for judicial review of the Board’s Further Decision.

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

DISCUSSION

16.It is obvious that when the Board considered time extension for the applicant’s late filing of Notice of Appeal against the Director’s Further Decision, it had also taken into account the facts found in its Decision dated 3 March 2015.

17.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.

18.There is nothing to show that the Board had committed any error in its application of the law to her case or in coming to its conclusions on the facts of the case.

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

CONCLUSION

20.I therefore refuse to grant leave to the applicant to apply for judicial review of the Board’s Further Decision. Accordingly, I dismiss his application.

Dated the 9^th day of July 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 9/7/2020 Mohammed Afsar Ali 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 9/7/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 127/14/8/42/IN43 & BOR 154/17/2/63/IN45 Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)