Mohammed Matenuddin v. Torture Claims Appeal Board

HCAL 1970/2020

[2021] HKCFI 468

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1970 of 2020

BETWEEN

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 submissions by (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 35-year-old national of India who last arrived in Hong Kong on 24 July 2007 with permission to remain as a visitor up to 7 August 2007 when he did not depart and instead overstayed and was arrested by police on 31 October 2007. After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to India he would be harmed or killed by the tenants of his inherited property over issues regarding their occupation right in the property, and after his torture claim was rejected, he then sought non-refoulement protection on the same basis. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Kolkata, West Bengal, India. After leaving school he worked as a street hawker in his home district.

3.In 2003 he was given a property by his grandfather situated in Akbarpur, Bihar which was about 12-hour bus ride form Kolkata, and which had been let out by his grandfather to 2 tenants for many years.

4.In 2007 the Applicant went to Akbarpur to view the property with a buyer and to inform the tenants of his intention to sell the property, but the tenants claimed to have lived there for so long that they would not be willing to move out, and threatened to kill the Applicant if he were to go ahead to sell the property, and proceeded to beat him with sticks that he had to flee from the place.

5.Shortly thereafter the tenants came to the Applicant’s home in Kolkata looking for him, and when he was not in the house, they threatened his grandfather that they would kill the Applicant if he went ahead to sell the property.     

6.As a result the Applicant became fearful for his life, and was advised by his family to leave India for his own safety, and so in April 2007 he departed for China, and from there he later travelled to Hong Kong where he subsequently overstayed, and upon his arrest by the police he then raised his torture claim, and after it was rejected by the Immigration Department, he sought non-refoulement protection, for which he completed a Supplementary Claim Form on 25 July 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.     

7.By a Notice of Decision dated 23 August 2018 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“persecution risk”).

8.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from the tenants upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that it was a private property dispute between them without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in India with a large population of 1.2 billion people spread across a vast territory of more than 3.2 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of India in large cities such as Delhi where it would be difficult if not impossible for those tenants to locate him.

9.On 4 September 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 14 October 2019 before the Board during which he however indicated that he considered it safe to return to India, and applied to withdraw his appeal.

10.Having considered the Applicant’s request and his reason for withdrawing his appeal, and being satisfied that his application to withdraw his appeal was freely sought and that he understood the consequences of the withdrawal, the Board by a decision of the same date acceded to his request and directed that his appeal be withdrawn, which decision in writing was handed to the Applicant on the same day of 14 October 2019. 

11.However, about one year later on 30 September 2020, the Applicant filed a Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely attached copies of the documents from his hearing bundle for his appeal before the Board but without putting forward any proper ground for his intended challenge.

12.The Applicant by then was also out of time with his intended application, as Order 53 rule 4(1) of the High Court Ordinance, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

13.As the last day of the three-month period for him to file his Form 86 fell on 14 January 2020, the Applicant was therefore more than 8 months late with his application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 383.

14.In the Applicant’s case, a delay of more than 8 months must be considered as very substantial and excessive, for which he did not provide any explanation for his delay, and as the Board’s decision was handed to him in person on the same date of 14 October 2019 at the hearing of his appeal, I do not see any proper reason for his serious delay.

15.As for the merits, if any, of his intended application, as noted above the Applicant did not put forward any proper grounds for his intended challenge either, and as he clearly indicated to the Board that it was safe for him to return to his home country when he applied to withdraw his appeal, and in the absence of any proper or valid ground from the Applicant to show that the Board was wrong in withdrawing his appeal at his request, I do not see any reasonably arguable basis for his intended challenge.    

16.Furthermore, as it has been held by the Court of Appeal in Ali Usman [2018] HKCA 955, the principle of functus officio applies to the Board in relation to validly withdrawn claims or appeals, and given the Board’s proper findings in the present case that the Applicant’s application to withdraw his appeal was freely sought, that he fully understood the consequences of the withdrawal, and that he had considered it safe to return to his home country, the Board was in my judgment entirely correct to withdraw his appeal, and I fail to see any merits in the Applicant’s intended application.    

17.Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

18.In the premises and 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 or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

19.Furthermore, on 14 January 2021 the Applicant filed an affirmation to request to withdraw his leave application because the problem which he had in his home country has now been solved.

20.As such, and as I am not for the reasons given satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay and given his latest confirmation that the basis of his claim no longer exists, I accordingly accede to his request and dismiss his leave application.

Dated the 24^th day of February 2021.

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