Ali Mohammed Rashid v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 1492/2018

[2020] HKCFI 2830

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1492 OF 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submission by the Applicant in open court.

Order by Deputy High Court Judge C P Pang:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.This is an application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) confirming the decision of the Director of Immigration (“the Director”) refusing the Applicant’s claim of non-refoulement protection.

2.The Applicant, born in 1984, is a national of India.  He arrived in Hong Kong on 15 July 2008 and was permitted to remain until 29 July 2008 as a visitor.  He overstayed and remained in Hong Kong unlawfully.  On 26 September 2008, he was arrested by the police and referred to the Immigration Department for investigation.  He then lodged a non-refoulement claim.  He was subsequently released on recognizance.

3.The facts of the case and the basis for the Applicant’s non-refoulement claim are summarized at para [9-22] of the decision of the Board.  Put simply, the claim was based on the fear that, if refouled, the Applicant would be harmed or even killed by Ansar and or his family due to the fact that the Applicant injured him during the course of a fight arising from a dispute in a cricket game.  During the fight, he threw a kerosene lamp at Ansar causing the left side of his body to catch fire.  Ansar’s brothers, associated with a political party, were looking for him to take revenge upon the Applicant and claim for compensation.  For fear of his safety, he left India on 14 July 2008 for Hong Kong.

The Director’s decision

4.By a notice of decision dated 18 May 2017, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds for reason that the claim was not substantiated.  Having taken into account all relevant circumstances, the Director assessed there are no substantial grounds for believing a real risk of harm.  He found that state protection is available to the Applicant and internal relocation is a viable option for him, which further lower the level of risk.  The decision covered torture risk^[1], BOR 2 risk^[2], BOR 3 risk^[3], and persecution risk^[4]. The Applicant lodged an appeal/ petition to the Board against the Director’s decision.

The Board’s decision

5.The Applicant attended a hearing before the Board on 22 December 2017.

6.By a decision dated 23 July 2018, the Board rejected the appeal/ petition confirming the Director’s decision.  The Board’s decision covered all applicable grounds.

7.The Board gave detailed reasons for rejecting the Applicant’s claim at paragraphs [46-76] of its decision.  In a nutshell, the reasons can be summarized as follows:

(1)  the Applicant’s account as to his reasons for seeking protection in Hong Kong is unconvincing and devoid of any merit and/or credibility whatsoever [46];

(2)  assuming the events of fighting to be true, he came to Hong Kong to avoid investigation and possible prosecution for assaulting Ansar [48];

(3)  he only sought protection after he was arrested [50];

(4)  not only is the Applicant lacking in credibility…he has never suffered any ill treatment [56];

(5)  in any event, internal relocation is a viable option for the Applicant [67].

8.Accordingly, the Board dismissed the Applicant’s appeal on all applicable grounds.

Application for leave to apply for judicial review

9.The Applicant filed a Form 86 on 27 July 2018 for leave to apply for judicial review of the decision of the Board.

10.No request for oral hearing has been made.  The application is therefore considered on the papers.

11.In the Form 86 and supporting affirmation, the Applicant did not set out any proper grounds for the relief sought.

Discussion

12.The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  In particular, the role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. Assessment of evidence, country of origin information, 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, procedural unfairness or irrationality in the decision of the Board.

13.When the Applicant pursued the appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore, while the court will examine the decisions of the Director and the Board with rigorous examination and anxious scrutiny, it is unnecessary to delve into the decision of the Director.  This decision will only focus on discussing the Board’s decision.

14.In the present case, the Board in fact rejected the Applicant’s appeal/ petition on the ground that it disbelieved the Applicant and found his evidence unconvincing and devoid of credibility.  On the factual findings, there would be no factual basis in support of any of the applicable grounds.  The Board further found that internal relocation is a viable option for him to alleviate any genuine fears he may have.

15.As explained above, the assessments of evidence, risk of harm, and viability of internal relocation are primarily within the province of the Board and the Director.  This court will not interfere with their decisions unless there is a public law ground for the court to do so.

16.The Applicant stated no grounds of the judicial review in Form 86.  He mentioned nothing in the form or in the affirmation to suggest how the Board erred in the public law sense.  In the absence of any error of law or procedural unfairness being shown by the Applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

17.The Applicant’s conduct in Hong Kong by his delay in lodging the claim for protection was inconsistent with someone in genuine fear for his life and safety.

18.Further, even if one gives his account the most favourable interpretation, the alleged past ill-treatment or experience were of low intensity and frequency demonstrating no real risk of future harm.  It came nowhere near the level of severity required by law to constitute torture or CIDTP.

19.The evidence can hardly establish that the Applicant would be at real risk of being subjected to any type of ill-treatment or proscribed harm, if refouled.

20.Both the Director and the Board engaged in a joint endeavour with the Applicant and considered all relevant criteria.  They gave the Applicant a reasonable opportunity to state his case and enquired into the issues appropriately.

21.There cannot be any criticism of the fairness and reasonableness of the decisions of the Director and the Board which are plainly reasonable.

22.Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law, irrational findings, or procedural unfairness in either of them.  Nor do I see any failure on their part to apply high standards of fairness in their decisions.

23.For the reasons given, there is no prospect of success in the Applicant’s intended application for judicial review.

Disposition

24.Accordingly, leave to apply for judicial review is refused.

Dated 18 November 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