Ahamed Azad v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 1903/2018

[2020] HKCFI 1849

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1903 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 of the Decision dated 7 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not ask for a hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended by replacing the Board with the Director of Immigration (the “Director”) as interested party.

The applicant

4.The applicant is an Indian national.  He came to Hong Kong as a visitor.  He overstayed and was arrested by police on 7 June 2013.  He lodged his torture claim on 9 June 2013 and was rejected by the Director.  He did not appeal against this decision.  He made his non-refoulement claim through his legal representative by written representation dated 28 January 2014.  Under the USM, his torture claim was not reviewed.

5.He claimed that if refouled, he would be harmed or killed by his former girlfriend, Soni Kumar’s family members.  Details of the fact can be found in paragraph 8-12 of the Board’s Decision.

The Director’s Decision

6.The Director considered his application in relation to the following risks:

a.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”);

b.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

c.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 13 February 2018 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision. He attended a hearing before the Adjudicator on 11 June 2018. 

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

10.In its Decision, the Board found that the story of the applicant was a fabrication and his claims could not be given any credence whatsoever.  See §§24-35 of the Board’s Decision.  Below is a summary of the findings.

a.His account of evidence was vague and inconsistent.

b.His evidence before the immigration officer and the Board was inconsistent.

c.He was unable to explain such discrepancies and inconsistences, given the opportunity to do so by the Adjudicator.

Application for leave to apply for judicial review

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

12.In his affirmation in support of his application, he did not set out any reasons for his application.

DISCUSSION

13.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. See paragraph 10 above.

14.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“ 13.… …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director), the court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

15.The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

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 for the applicant to apply for his intended judicial review.  Accordingly, I dismiss his application.

Dated the 4^th day of August 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