Sabir Khan v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 2645/2018

[2022] HKCFI 615

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2645 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 Decisions dated 13 November 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not request a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), his application 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 national of India.  He entered Hong Kong illegally on 31 August 2015 and surrendered to the Immigration Department on the same date. On 23 February 2016, he lodged a non-refoulement claim.  The applicant’s claim was made on the basis that, if refouled, he would be harmed or killed by the supporters of the Bharatiya Janata Party (“BJP”) because he refused to join them.

5.According to the applicant, he was asked by members of the BJP to support them in the 2014 election.  Nevertheless, as a supporter of the Congress Party (“CP”), the applicant not only refused their request but also had a serious dispute with them.  In the end, the BJP won the election in October 2014.  In around March 2015, he had a quarrel again with the BJP members.  A month later, he was attacked by 20 to 30 local BJP supporters with wooden sticks for around five minutes.  After the attack, he escaped to other cities.  However, he learnt that the BJP members continued to chase him.  Out of fear, he eventually fled to Hong Kong for protection.  Details of his claim are set out in paragraph 6 of the Director’s Decision as defined below and paragraph 3 of the Board’s Decision described below.

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 the Notice of Decision dated 26 January 2018, the Director refused the applicant’s claim on all applicable grounds.  The Director found that there were no substantial grounds to believe that he would be harmed or killed by the BJP supporters upon refoulment because (i) the low frequency and intensity of past-ill treatments from the BJP supporters indicated an unlikelihood of future harm [12]-[13]; (ii) state protection would be available to him [14]-[16]; and (iii) internal relocation was an option open to him [17]-[19]. 

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  He attended the scheduled hearing on 6 September 2018, during which he was given the opportunity to clarify and supplement his claim.

9.The Board recorded in details its exchange with the applicant in relation to the Board’s doubts in the material aspects of his claim [18]-[44]. Having considered the applicant’s evidence, the Board refused to accept that he was involved in the CP and that he was pursued and attacked by the BJP.  The Board found that the applicant’s claim about his involvement with the CP lacked credibility as the applicant failed to provide any details of the CP and only gave generalized and broad evidence regarding his activities in CP [46]-[49]. Further, the Board found that his evidence of being low level in the CP contradicted his allegation that the BJP supporters had been pursuing him.  It also cast doubt on the applicant’s claimed risk of harm since his family still resided in the home village [50]-[52].  For these reasons, the Board rejected his claim and dismissed his appeal.  

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 22 November 2018 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, he said “… I do not agree with the adjudicator …”

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 applicants’ 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.The Board was entitled to assess his evidence and come to its decisions.

16.The applicant does not have any 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 that shows that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

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

Dated the 7^th 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