Shah Mohammed Kamaluddin v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1471/2018

[2021] HKCFI 3655

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1471 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.This is the applicant’s application for leave to apply for judicial review of the Decision dated 13 July 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s BOR 2 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 sought to enter Hong Kong on 6 March 2015 but was refused permission to land.  While pending removal, he lodged a non-refoulement claim.  

5.The applicant claimed that if refouled, he would be harmed or killed by Firhad Hakim and/or his people.  According to the applicant, he had a garment business in around 2000.  In January 2014, he approached Firhad, a local leader of Trinamool Congress Party (“TMC”), and borrowed money for his business.  Yet, in July 2014, his business went downhill and was unable to make repayments on time.  In October 2014, the applicant was attacked by 5-6 men and his index finger was fractured.  They also posed verbal threats against him.  His subsequent report to the police was of no avail.  In December 2014, he was again attacked by 8-10 men.  They punched and kicked the applicant who sustained injuries on his lower back.  Again, the police did not take any action against his attackers.  Since the applicant was still unable to repay in full and his attempt to seek help from the court also failed, he fled to Hong Kong for protection.  Details of his story are set out in paragraph 6 of the Director’s Decision described below and paragraphs 23-42 of the Board’s Decision as defined below.

The Director’s Decision and the Director’s BOR2 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 20 May 2015 (“the Director’s Decision”), the Director refused his claim on the grounds of Persecution risk, BOR3 risk and Torture risk for the reason that his claim was not substantiated.  The Director found that the level of risk of him being harmed or killed by Firhad and his people upon refoulement was assessed to be low [12]-[14]; that state protection was available to him [15] and that internal relocation was an option open to him [16]-[21].  In a decision dated 24 May 2017 (“the Director’s BOR2 Decision”), the Director also dismissed his claim on BOR2 risk.

The Board’s Decision and the Board’s BOR2 Decision

8.The applicant first appealed the Director’s Decision to the Board.  An oral hearing was held on 23 August 2016, during which the applicant answered the Board’s inquiries with assistance of an interpreter. 

9.By the Board’s Decision, the Board affirmed the Director’s Decision and dismissed his appeal. The Board found that there was no evidence of state involvement as the applicant’s dispute with Firhad was private.  The applicant also encountered no problems while he lived in Bardhwan which was only 70 kilometers from his home. As a result, his claim on Persecution risk failed.  For the same reasons, his claims on BOR 3 and Torture risk also failed [48].  In any event, the Board found that internal relocation to Delhi or Bardhwan where he had lived worry free was available to the applicant [49]-[53].  Thus, the Board dismissed his appeal against the Director’s Decision.

10.In the Board’s BOR2 Decision, the Board also considered the applicant’s appeal against the Director’s BOR2 Decision.  In light of the Board’s findings in the Board’s Decision, it found that the applicant’s appeal against the Director’s BOR2 Decision also had no merits and dismissed his appeal [11]-[14].

Application for leave to apply for judicial review

10.  The applicant filed Form 86 dated 26 July 2018 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, he enclosed the papers of the hearing bundle.  He did not set out any specific grounds in support of his application.

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 (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.”

15.He has submitted no valid ground to assist his application.  The Board has considered the facts in the Board’s Decision, which forms the factual basis of his claim.  Having considered the facts, the Board concluded that there was no merit in his appeal against the Director’s BOR 2 Decision.

16.The Court does not find any error of law or procedural unfairness in the Board’s BOR 2 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 8^th day of December 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