Mohammad Hasim v. Torture Claims Appeal Board /Non Refoulement Claims Petition Office

HCAL 1468/2018

[2021] HKCFI 3521

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1468 of 2018

____________________

____________________

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.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court (“RHC”), Form 86 is amended to the effect that the date of the Director’s Decision is 4 July 2018 (the “Director’s Decision”) instead of 19 June 2017. The Director’s Decision rejected his subsequent claim.

2.The applicant had made a non-refoulement claim on 21 July 2013 (“his previous claim”), which was rejected by the Director of Immigration (the “Director”) on 20 January 2016.  His appeal to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office against the Director’s Decision was dismissed by the Board on 23 June 2017.  He was repatriated to India on 27 July 2017.

3.On 9 June 2018, he entered Hong Kong illegally by boat. He surrendered to the Immigration Department. On 11 June 2018, the Director received the applicant’s written submission for non-refoulement, which the Director treated as his subsequent claim under the Unified Screening Mechanism as he had made his previous claim.

4.Under section 37ZR[1] of the Immigration Ordinance, Cap. 115 (the “Ordinance”), the Board has no power to hear any appeal from the decision of the Director on a subsequent claim.  Therefore, the applicant took out this application for leave to apply for judicial review of the Director’s Decision.

5.He is now being detained by the Immigration Department.  The applicant did not ask for a hearing.  Pursuant to Order 53, rule 3(3) of the RHC, the matter is dealt with on paper.

The applicant  

6.The applicant is a citizen of India. In his previous claim, he claimed that if refouled, he would be harmed or killed by his creditors because he was unable to repay his debt. From mid-2011 to August 2011, because he failed in his electronic business and was unable to repay his debt to the creditors, he was, on a number of occasions. attacked by the creditors with hands and wooden sticks.  They threatened him that if he was unable to pay, they would kill him. He had complained to police against their conducts.  But the police took no notice of his complaints.  He had attempted to avoid the creditors by moving to live in various places.  He was located and attacked. He took his family’s advice to leave India for Hong Kong in August 2011.  Details of his story are set out in paragraph 6 of the Director’s Decision.

The applicant’s previous claim

7.In his previous claim, 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”).

8.The Director rejected his previous 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 his creditors upon refoulement was assessed to be low [11]; that there was no evidence to show that the state was involved, and although he had bad experience with the police, it did not mean the police force was bad in India and since there was no evidence wo show that the state was involved, reasonable state protection would be available to him [14-16] and that internal relocation was an option open to him [17].

9.The applicant appealed to the Board. The Board affirmed the Director’s decisions and dismissed his appeal.  The Board recorded that at the hearing, the applicant decided not to answer any questions put to him by the adjudicator. This, coupled with the fact that he did not seek protection immediately after arriving in Hong Kong until after two years and having been arrested by police, the Board had doubts on the credibility of his evidence.  It dismissed his appeal on all risks of his claim.   

Application for subsequent claim

10.The applicant relied upon the same issues of fact that because he was unable to pay his debt, his creditors may harm of even kill him if he returns to India. When he returned to India in July 2017 on repatriation, he was located and attacked by the creditors in India.

11.The Director considered the issues and applied the law on his subsequent claim. Under section 37 ZO (1) & (2) of the Ordinance, it provides:

(1)     Except as provided in subsection (2), a person who has previously made a torture claim must not subsequently make another torture claim.

(2)     A person may make a subsequent claim if the person provides sufficient evidence in writing to satisfy an immigration officer that—

(a)   there has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and

(b)   the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.

12.Having considered the evidence, the Director concludes that the applicant is relying upon the same facts for his previous claim for his subsequent claim.  Those circumstances as he alleges, when considered together with the facts for his previous claim, will not constitute any significant change of circumstances that will give the subsequent a realistic prospect of success.

13.Eventually, the Director dismissed his subsequent claim.

Application for leave to apply for judicial review

14.The applicant filed Form 86 on 25 July 2018 for leave to apply for judicial review of the Director’s Decision.

15.In his affirmation in support of his application, he stated that the Board’s Decision [Director’s Decision] was unfair and unreasonable.

DISCUSSION

16.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. 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).

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

18.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …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.”

19.He has submitted no valid ground to assist his application. The Director had considered his evidence and applied the appropriate law to his case.

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

21.There is no evidence to show that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

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

Dated the 24^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