Trannum Shazia and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2658/2018

[2021] HKCFI 1266

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2658 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

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

Following;

	consideration of documents only;  or
	consideration of documents and Applicant being absent 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.The applicants are mother and son, who was born on 3 January 1994 and is now about 27 years old, an adult. I shall refer to the first applicant as the applicant and the second applicant as applicant son, unless otherwise stated below.

2.The applicants jointly apply for leave to apply for judicial review of the Decision dated 4 October 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). The applicant son’s case relies upon the facts of the applicant.

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 applicants

4.The applicant is an Indian national. She and her son came to Hong Kong on 10 June 2011. They were permitted to stay as visitors. They overstayed. They surrendered to the Immigration Department. On 27 July 2011, they made their torture claim, which they subsequently withdrew on 1 November 2012. They lodged their non-refoulement claim by written representation dated 14 May 2014.

5.The applicant claimed that if refouled, she and her applicant son were in fear of being ill-treated and killed by members of the Sunni and Shia Muslim Sects or anit-Ahmadis Muslims due to their family’s Ahmadi Muslim faith. The applicant had two marriages. Her son was born in her first marriage. Their trouble arose from her father-in-law of her first marriage, who preached in Ahmadi faith in the areas around the locality. This caused animosity from a powerful Sunni Maulana, a powerful figure in the locality. Her first husband was killed by Maulana. Her parents-in-law passed away shortly after their son’s death. She was harassed on the phone by Maulana from time to time. Then she married her second husband, who was also of Ahmadi faith. He died of heart attack. Maulana continued to harass her on the phone. Her son was studying in the same school as Maulana’s grandsons. He was bullied by Maulana’s grandsons and other pupils from time to time. On 30 May 2011, whilst her applicant son was walking on the road after school, two men on a motorbike attempted to abduct him. One of them tried to grab hold of him. He fell on the ground and had his hand injured. He managed to free himself and got back home. The matter was reported to police. But the police did not take any action. She finally decided to leave India with her son to Hong Kong. Details of the incidents are set out in paragraph 9 of the Director’s Decision described below.

The Director’s Decision

6.Since the applicants had made their torture claim previously, which they subsequently withdrew, the risk of torture under Part VII C of the Ordinance was not considered again. The Director considered their 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 11 April 2017 (“the Director’s Decision”), the Director refused their claim for the reason that their claim was not substantiated. The Director found that there were no substantial grounds for believing that there would be any real and substantial risk of her and her son being harmed or killed by the anti-Ahmadi Muslims upon their return to India [16]; that state protection was available to them [22] and that internal relocation was an option open to them [28].

The Board’s Decision

8.The applicants appealed to the Board against the Director’s Decision. The applicants, who were represented by a duty lawyer, attended a hearing before the Board on 22 June 2018.

9.For the reasons set out in the Board’s Decision, the Board, rejected her and her son’s appeal and affirmed the Director’s Decision. The Board found the following facts:’

i.  state protection is provided in an effective manner and available and there is no state involvement [130];

ii.  internal relocation is an option open to the applicants [138-140];

iii.  there is no evidence to show that there is a personal and real risk of the applicants being subjected to BOR 2 risk on their return to India [148];

iv.  there is no evidence that the applicants were the target of Sunni and Shia sects at large and the cause is personal enmity between Maulana and the applicant’s father-in-law [154]; and

v.  it is a private dispute which does not come within the definition of persecution [155].

Application for leave to apply for judicial review

10.The applicants filed Form 86 on 23 November 2018 for leave to apply for judicial review of the Board’s Decision.

11.In the applicants’ affirmations in support of their joint application, the applicants said that the Board’s Decision is unfair as it said that it was a family dispute whereas in reality, it was because of their religious views. The Board accepts that there is corruption in India police.

DISCUSSION

12.Since the applicant son is already an adult, the case of Fabio Arlyn Timogan v Evan Ruth Esq, Adjuciator of the Torture Claims Appeal Board/Non Refoulement Claims Petition Office [2020] HKCA 971 does not apply to their case.

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

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 Board said that the events were of a private dispute. Although the applicants may argue that they were in fact because of their religious views, the important issue is that there is no evidence to show that the state was involved in Maulana’s actions against them. Besides, the Board also found that state protection was available to them and internal relocation was an option open to them. All these will alleviate the risks which they claim.

16.The Board, having affirmed the Director’s Decision, agrees to the Director’s views that there is nothing to suggest that Maulana and his followers or anti-Ahmadis Muslims were looking for them. Though they claimed that Maulana and anti-ahmandis Muslims would try to kill many grown up boys and the applicant said that she scared that they would kidnap her children, it is no more than her mere speculation. See §21 of the Director’s Decision. 

17.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.

18.There is no evidence that shows that the applicants have any reasonable chance of success in their intended judicial review.

CONCLUSION

19.I therefore refuse to grant leave for the applicants to apply for their intended judicial review.  Accordingly, I dismiss their application.

Dated the 10^th day of May 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