Mohammad Arif v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 223/2019

[2021] HKCFI 3361

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 223 of 2019

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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 21 December 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”), the matter is dealt with 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 a citizen of India.  He entered Hong Kong as a visitor on 5 September 2017 but overstayed since 20 September 2017.  On 29 April 2018, he was arrested by the police and referred to the Immigration Department.  On 3 May 2018, he was sentenced to 16 days’ imprisonment, suspended for 12 months.  On 31 August 2018 and 11 September 2018 respectively, he lodged a non-refoulement claim by way of written representation. 

5.He claimed that if refouled, he would be harmed or killed by Chandar Pal Yadav (“Yadav”) because he refused Yadav’s request to divorce his Hindu wife.  According to the applicant, Yadav was powerful and connected to Bharatiya Janata Party (“BJP”).  In 1994, the applicant married his wife, who was Hindu whilst the applicant was Muslim.  Since then, they had been discriminated.  One day in 2016, Yadav began to threaten the applicant, demanding him to divorce his wife.  In December 2016, he encountered Yadav and five followers.  While he escaped without sustaining any injuries, his report to the police was of no avail.  Thus, the applicant decided to leave for Hong Kong for protection.  In 2018, he also heard from his wife that two Muslim were killed on the train simply because of their religion. Details of his story are set out in paragraph 6 of the Director’s Decision described below and paragraph 10 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 5 November 2018 (“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 him being harmed or killed by Yadav if he returned to India was assessed to be low [13]-[15]; that state protection was available to him [16]-[20] and that internal relocation was an option open to him [21].

The Board’s Decision

8.The applicant appealed against the Director’s Decision.  The applicant requested his appeal to the Board be dealt with on the papers and the Board acceded to his request [6].  After considering the documents, by the Board’s Decision, the Board affirmed the Director’s Decision and dismissed his appeal.

9.The Board was guided by relevant legal principles and it evaluated the applicant’s evidence against the objective documents [11]-[18].  It pointed out that several material aspects of the applicant’s claim remained bare assertions without objective proof [22].  These would have an adverse effect on the applicant’s credibility and his claim’s plausibility [23].  Further, the Board considered the country of origin information and the sufficiency of state protection [24]-[25];[28]-[29].  Bearing in mind that the applicant’s credibility should not be impugned simply because of vagueness or inconsistencies in his account of the peripheral details, the Board concluded that the material aspects of the applicant’ claim were unreliable and that there was no evidence of state acquiescence or involvement. Nor was there any evidence of physical or mental injuries from the applicant [35]-[48].  The Board rejected the applicant’s claim on all applicable grounds [49]-[53].    

Application for leave to apply for judicial review

10.The applicant filed Form 86 dated 23 January 2019 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, he said that he considered the Board’s Decision was unfair.  He said that he was being detained in the detention centre, therefore, he is unable to obtain documents to prove his case.

DISCUSSION

12.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal.  The Court will not usurp the fact finding power vested in the Director and the Board.  See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, CA. §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

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.He has submitted no valid ground to assist his application. The Board has reject his evidence on the facts of his claim and further found that state protection was available to him and internal relocation was an option open to him.

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 realistic prospect 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 18^th day of November 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