Hossain Azhar v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 2907/2018

[2020] HKCFI 1748

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2907 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:    

1.  The order of Deputy High Court Judge K.W. Lung dated 12 June 2019 be set aside; and

2.  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’s Decision”).

2.The applicant was absent at the hearing on 12 June 2019 and his application was dismissed for want of prosecution. The applicant applied for extension of time to appeal. But he was absent again at the hearing. I shall now set aside the order of dismissing his application and proceed to consider his application on paper.

The applicant

3.The applicant is an Indian national. He arrived in Hong Kong on 22 October 2016. He overstayed and surrendered to the Immigration Department on 7 November 2016. His non-refoulement claim was lodged by written signification dated 22 March 2017.

4.He claimed that he was in fear of being harmed or even killed by Firhad Hakim, Bobby (“Firhad”) and his people including a local gangster called Raja if he returned to India due to a loan dispute.

5.The applicant ran a business in India. He had borrowed money from Firhad, a local minister and a well-known money-lender in India with political connection, especially All India Trinamool Congress. Things went well as he was able to repay from time to time. However, on one occasion, his goods were confiscated by the customs at the airport. He was therefore unable to pay the debt to Firhad. He had told Firhad about this and asked for extension of time for repayment of the loan. Firhad agreed to allow him 15 to 20 days. Firhad warned him that if he was unable to repay within the grace period, he would be in great trouble. One month passed and he had not repaid the loan. Firhad then came to his house together with other people and Raja was one of them. He knew that Raja was ready to kill him if he was unable to pay. Firhad told him to repay within one month. On this occasion, he was not hurt. During this period of time, he felt that he was being followed by Firhad’s people wherever he went. On one occasion, he met Raja with other people on the street. They told him to repay. Raja pushed him but did not hurt him. He went to Saudi Arabia and other countries in order to avoid these people. He was called from time to time for repayment. His friends told him that Firhad was asking his whereabouts. On 22 October 2016, he came to Hong Kong.

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 under RC”).

7.By Notice of Decision dated 22 March 2018 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was unsubstantiated.

The Board’s Decision

8.The applicant appealed to the Board. The Board decided that his case could be dealt with on the paper without a hearing.

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

10.The Board considered the applicant’s case. It seems that the Board did not challenge the alleged facts of the applicant. It, however, found that based upon those facts as stated by the applicant, there were no substantial grounds for believing that there would be any real risk of him being harmed or killed by Firhad and/or his followers if he returned to Indai [24(c)]. The Board has set out the reasons in paragraph 24 of its Decision. The matter was a money lending business where Firhad had not harmed the applicant. There was no government involvement though Firhad is a local minster. The applicant’s fear of being tortured or harmed was his self-induced fear without any facts to support. See paragraphs 23-33.

11.In his Form 86, the applicant applied for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of his application dated 18 December 2018, the applicant relied upon a written submission:

(1) procedural impropriety/irrationality: failure to apply para. 2 of the UN Committee against Torture General Comment No. 2; failure to conduct hearing; failure to state the reasons or the reasons were insufficient for the conclusion; and

(2) error/misdirection in law: failure to account the considerations of psychological strain and threats to him personally.

DISCUSSION

13.The grounds above fail as they are his views without any evidence or specifics in support or the issue was never raised before the Board.

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

CONCLUSION

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

Dated the 30^th day of July 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