Case Document

100%Judiciary

HCAL 2659/2018

[2021] HKCFI 1234

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2659 of 2018

BETWEEN

	Shaikh Sarfaraz	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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.This is the applicant’s application for leave to apply for judicial review of the Decision dated 31 October 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 is an Indian national. He last came to Hong Kong on 31 December 2014 as a visitor. He overstayed and surrendered to the Immigration Department. He lodged his non-refoulement claim with the Immigration Department on 24 March 2015.

5.He claimed that if refouled, he would be harmed or killed by Asgar due to a loan dispute. He had borrowed 6 million Indian Rupees from Asgar. He was unable to repay the debt. Asgar threatened to kill him. He came to Hong Kong. He further said that Asgar had sent some people to Hong Kong to kill him. He was attacked. He reported the matter to police. No one was arrested. Details of the incident are set out in paragraph 7 of the Director’s Decision described below.

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 17 April 2018 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director found that there was no ground for believing that he would be subjected to any real risk of being harmed or killed if he returned to India [13]; that state protection was available to him [17] and internal relocation was an option open to him [21].

The Board’s Decision

8.The applicant appealed against the Director’s Decision. He attended the hearing before the Board on 14 September 2018.

9.By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision for the reasons as set out below.

(1) The Board did not accept the applicant’s evidence as he was unable give particulars as to the loan he had borrowed from Asgar, the particulars Asgar had threatened him and evidence on the assailants in Hong Kong sent by Asgar to kill him. The Board found that he failed to establish that there were substantial grounds for believing him that he would be liable to be subjected to torture if he returned to India. For these reasons, his claim on all risks were rejected. [29-37]

(2) The Board also found that internal relocation was an option open to him if he returned to India. [48]

Application for leave to apply for judicial review

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

11.In his affirmation 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. 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 review.

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 10^th day of May 2021

(M. O. WONG)(Ms)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 10 May 2021 Shaikh Sarfaraz Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 10 May 2021 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 11461/18/5/46/IN2251 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 929/18 (Formerly RBCZ 11272/15)[T8S130] Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)