Islam Nazrul v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1277/2018

[2021] HKCFI 632

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1277 OF 2018

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 the Applicant 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 dated 28 June 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 to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.

The applicant

4.The applicant an Indian national.  He came to Hong Kong on 13 August 2014 and surrendered to the Immigration Department on 2 September 2014.  He lodged his non-refoulement claim on the same day.

5.He claimed that if refouled, he would be harmed or killed by his creditor named Majoj Kumar from whom he had borrowed a loan of 500,000 Indian Rupees.  He ran his business in garment and mobile phones. He paid interest only.  However, Kumar brought some people to his home and demanded repayment of the loan.  At that time, he was not home and his wife told him about this incident.  Later, he met Kumar, who threatened to kill him if he was unable to repay the loan.  He was scared and fled to Hong Kong.  His wife and children relocated to a friend’s house.  Details of the incidents are set out in paragraphs 6-14 of the Board’s Decision.

The Director’s Decision

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

a.  risk of torture under Part VII C 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”).

7.By Notice of Decision dated 28 July 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director found that the level of risk of harm from Raj upon his return to India was assessed to be low [12]; that state protection was available to him [16] and internal relocation was an option open to him [19].

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision. He attended the hearing on 28 March 2018.  

9.By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision for the reason that it disbelieved the applicant’s evidence on the facts of his case. At paragraph 59 of the Board’s Decision, it stated:

“59. …., his credibility is paramount. If he is untrustworthy, there is little on which the Board may rely. Based on multiple inadequately explained discrepancies, I am not willing to attach any credence to the Appellant’s NCF, the Interview or his testimony at the Hearing including his evidence regarding the loan, the terms of payment, his business, the assault by Manoj Kumar or his creditors, the threat to his life, or the need for him to leave India in order to be safe. The Appellant has failed to discharge the burden on him of proving his claim and I find that the centerpiece of his story has not been proven.”

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 4 July 2018 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmations and a separate attachment in support of his application, he set out his grounds summarized as follows:

(1)  no reasonable basis or adequate reasons to reject his credibility;

(2)  failure to consider extended state acquiescence;

(3)  failure to consider the COI;

(4)  irregularity: the adjudicator is not the same immigration officer; failing to investigate the COI; selective weights to COI; adjudicator referring to COI without prior referring it to the applicant; failing to consider consistent system of human right violation; failing to consider state protection; consider irrelevant issues; no legal representation or hearing for the BOR 2 risk assessment;

(5)  procedural impropriety: no sufficient chance for the applicant to call evidence; failing to call psychological and/or psychiatric report; applying incorrect standard of proof and no proper basis for internal relocation assessment.

DISCUSSION

12.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

13.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.”

14.The Court of Appeal in Re Ahmed Syed Rafiq [2018] HKCA 178, 26 March 2018, held that the applicant is not entitled to free legal representation at every stage of the proceedings as he had already had duty lawyer’s service at the screening stage [22].

15.His grounds in support of his application above are sweeping. Most of them are not applicable to his case.  The Board has considered his evidence in the hearing before it.  See paragraphs 47-58 in the Board’s Decision.  I consider that it is unnecessary to address each of his grounds.  I have dealt with the relevant grounds by reference to the authorities above.  There is no evidence or specifics in support of the other grounds.  There is no problem with the consideration of the Country of Origin Information by the Board or the application of the law to his case.  The grounds above should be rejected.

16.The Court does not find any error of law or procedural unfairness in the Board’s Decision.  The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

17.There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial.

CONCLUSION

18.I therefore refuse to grant leave for the applicant to apply for his intended judicial review.  Accordingly, I dismiss his application.

Dated the 16^th day of March 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