Achbboukh Jamal v. Torture Claims Appeal Board

HCAL 1101/2020

[2021] HKCFI 2856

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1101 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 26-year-old national of Morocco who last arrived in Hong Kong on 9 November 2016 with permission to remain as a visitor up to 9 December 2016 when he did not depart and was on that day arrested by police for obtaining property by deception for which he was subsequently convicted and sentenced to prison for 20 months, and whilst in prison he raised a non-refoulement claim with the Immigration Department on the basis that if he returned to Morocco he would be harmed or killed by certain extremist group for engaging in homosexual activities with another man which was illegal in Morocco.

2.The Applicant was born and raised in Taroudant, Taroudant Province, Morocco.  After leaving school he worked as a shopkeeper in his father’s electronic shop in Agadir.

3.The Applicant considered himself as bisexual as he had had sexual relationship with both men and women, and in 2014 he formed homosexual relationship with a man by the name of Kamel, and as homosexual activities were against the law in Morocco, they kept their relationship discrete and would meet up only secretly.

4.One day in March 2016 the Applicant heard from a friend that Kamel had been killed by an extremist group which opposed homosexual conducts and that Kamel’s mobile phone which had pictures of their relationship had been taken by the group, and later when he received threatening phone calls from unknown men, the Applicant feared that the extremist group was going after him, and so he fled to Ifrane in the northern part of Morocco to take shelter in a relative’s place, and from there he later departed Morocco for Turkey and Malaysia, and eventually to Hong Kong where he was subsequently arrested by police for the offence of obtaining property by deception, and after he was convicted and sent to prison, he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 1 November 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).       

5.By a Notice of Decision dated 14 December 2017 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), 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”).

6.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 extremist group upon his return to Morocco as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real or direct threats from them other than his own speculations, that in the absence of 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 Morocco with a large population of 34 million people spread across a vast territory of more than 446,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of Morocco away from his home district in large cities such as Casablanca where it would be difficult if not impossible for that extremist group to locate him.

7.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but for which he failed to attend the scheduled oral hearing for his appeal without explanation, and the Board proceeded to deal with his appeal in his absence and on paper.  On 6 September 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found on the basis of the materials and information previously submitted by the Applicant to the Director and available before the Board that the Applicant’s claim of fear of harm from the extremist group over his homosexual relationship with Kamel was based entirely on hearsays and own speculations without any reliable evidence at all of the existence of the extremist group or the alleged death of Kamel or of the Applicant’s own alleged homosexuality or that he had been targeted by anyone prior to his departure of Morocco that it was not accepted that he has established any well-founded fear of harm or persecution upon his return to Morocco that his claim for non-refoulement protection failed on all applicable grounds.   

9.On 4 June 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, in which he just stated that the decision was wrong and was unfair and unreasonable but without providing any details or particulars or elaboration as to how it was so.

10.By then the Applicant was also seriously out of time with his application, as Order 53 rule 4(1) of the High Court Ordinance, Cap 4 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.

11.As the last day of the three-month period for him to file his Form 86 fell on 6 December 2019, the Applicant was therefore almost 6 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 HKCA 393.

12.In the Applicant’s case, a delay of 6 months must be considered as extremely substantial and excessive, for which he did not provide any explanation in his application, and as the record shows that the decision was sent on the same day to his last reported address without being returned though undelivered post, I do not see any good reason for his serious delay.

13.As for the merits, if any, of his intended application, as noted above the Applicant has also failed to put forth any proper ground for his intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in the process of his appeal to the Board or its decision being clearly and properly identified by the Applicant, I do not find any merits in his intended application either.    

14.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524. 

15.In the Applicant’s case, the Board rejected his claim essentially on its finding of no reliable evidence of any basis for a well-founded fear of harm or persecution due to his alleged homosexuality for the thorough and detailed analysis and reasoning set out in paragraphs 58 – 80 in its decision based on the materials and information previously submitted by him but which he failed to establish by oral evidence for his appeal without explanation, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.    

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

17.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. 

18.Furthermore, the Applicant recently informed the court through his request to the Director on 5 July 2021 that he wishes to withdraw his application as he wants to leave Hong Kong to return to his home country as soon as possible.   

19.In the premises, as I am for the reasons given not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation of his wish to leave Hong Kong to return to his home country, I accede to his request and accordingly dismiss his leave application.

Dated the 23^rd day of September 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