Alam Imtiaz v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 2196/2018

[2022] HKCFI 539

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2196 of 2018

BETWEEN

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 3 May 2018 of the Board (“the Board’s BOR2 Decision”) as described below. His application filed on 10 October 2018 is late for 2 months and 7 days. I shall deal with this issue below.

2.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 proposed respondent is the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”) and the interested party is the Director of Immigration (the “Director”).

3.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 consider his application on the papers.

The applicant 

4.The applicant is a national of India.  He was arrested in Hong Kong by the police on 5 November 2007 for illegal remaining.  On 15 November 2007, he lodged a torture claim, which was taken as a non-refoulement claim upon the commencement of unified screening mechanism.  The applicant’s claim was made on the basis that, if refouled, he would be harmed or killed by Mehboob Alam and Sarwar Alam, his elder brothers, for a land dispute. 

5.According to the applicant, his elder brothers worked for Community Party of India (Marxist) (“CPIM”).  On 8 January 2006, the applicant’s father transferred the land to him.  Later, the elder brothers started to harass the applicant and the father, asking the father to transfer the land to them.  One month later, the elder brothers started to beat the applicant with bare hands. Thereafter, the applicant received verbal threats and also was attacked, suffering from a knife cut on his shoulder and swellings.  Out of fear, he eventually escaped to Hong Kong for protection.  Details of his claim are set out in paragraph 6 of the Notice of Decision dated 6 August 2014 by the Director (“the Director’s First Decision”) and paragraphs 8 to 20 of the decision dated 17 February 2016 by the Board (“the Board’s First Decision”) described below.  

The Director’s Decisions

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 the Director’s First Decision, the Director refused his claim on the ground of Torture risk, BOR3 risk and Persecution risk for the reason that his claim was not substantiated. The Director found that there was no substantial evidence for believing that he would be subjected to the risks he alleged if he returned to India [10]-[12]; that state protection would be available to him [13] and that internal relocation was an option open to him [14].  In the Notice of Further Decision dated 4 May 2017 (“the Director’s Second Decision”), the Director also rejected his claim on BOR2 risk for the reason that there was no evidence to show that his right to life under BOR2 would be violated upon his return to India. 

The Board’s Decisions

8.The applicant appealed the Director’s First Decision to the Board.  An oral hearing was conducted on 23 April 2015.  Having considered the applicant’s evidence, the Board dismissed his appeal.  The Board assessed the applicant’s claim on individual grounds.  It found that the applicant’s alleged injuries did not attain the level of severity which would amount to torture [45]-[48]; that it was a family dispute without state involvement or state acquiescence [49]-[67].  Further, the Board found that state protection and internal relocation were available to the applicant [68]-[97].  For these reasons, the Board rejected the applicant’s claim on the grounds of Persecution risk, Torture risk and BOR3 risk.  

9.The applicant’s appeal against the Director’s Second Decision was heard by the Board on 26 March 2018.  The Board noted that the applicant had not provided additional information for his claim on BOR2 risk before the Director.  Before the Board, the applicant’s evidence was that he had no fear of his right to life being at risk on his return to this country [40]. Considering all the available evidence, by the Board’s BOR2 Decision, the Board rejected his claim on BOR2 risk and dismissed his appeal against the Director’s Second Decision.

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 10 October 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 documents of the Director and the Board’s Second Decision without setting out any specific ground in support of his application.

DISCUSSION

12.As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. The delay of more than 2 months and 7 days is significant. However, I shall first consider the merits of the applicant’s case.

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.The applicant did not apply for leave to apply for judicial review of the Board’s First Decision, which then has become final. The factual basis of the Board’s Second Decision is on the Board’s First Decision. It is natural that the Board found no evidence to show that the applicant’s BOR2’s right would be violated.

16.There is no valid ground to challenge the Board’s Decision.

17.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.

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

CONCLUSION

19.I therefore refuse to extend time for the applicant to apply for his intended judicial review.  Accordingly, I dismiss his application.

Dated the 1^st day of March 2022

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