Case Document

100%Judiciary

HCAL 492/2019

[2022] HKCFI 903

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 492 of 2019

BETWEEN
	Mohammad Rashid	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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.The applicant applies for leave to apply for judicial review of the Decision dated 24 January 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with his application 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 as a visitor on 9 July 2014 but did not leave when his limitation of stay expired. He had overstayed since 24 July 2014. On 8 August 2014, he surrendered to the Immigration Department. On 3 September 2014, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by his creditor, Sikander.

5.According to the applicant, he borrowed a loan from Sikander in June 2012 for his mobile phone business. Sikander was influential and well-connected. In February 2014, the applicant lost his business and was unable to repay the loan. In May 2014, Skikander slapped him and asked the staff to beat him with wooden sticks because of his default. Out of fear, the applicant eventually fled to Hong Kong for protection. Details of the applicant’s claim were set out at paragraph 6 of the Director’s Decision and paragraphs 9 to 21 of the Board’s Decision as 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 a Notice of Decision dated 7 February 2018 (“the Director’s Decision”), the Director refused his claim. The Director found that no substantial ground was present to believe that the applicant would face real or substantial risk of harm upon refoulement because (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [15]-[16]; (ii) state protection would be available to him [17]; and (iii) internal relocation was also an option [18].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 29 October 2018, he attended an oral hearing and gave evidence with the assistance of an interpreter before the Board [23].

9.The Board enquired the applicant on the material aspects of his claim [22]-[30]. It considered the country of origin information (“COI”) and found that, although there were concerns about money lenders in India, the government had implemented measures to regulate the problems [32]-[34]. Further, having reviewed the applicant’s evidence, the Board found that he was not a credible witness because: firstly, there were significant inconsistencies in the key issues, such as the timing of his default and the alleged assaults [35]-[38]; secondly, the COI indicated that the applicant could safely relocate to other areas [39]-[40]. For these reasons, the Board rejected the applicant’s claim and dismissed his appeal.

Application for leave to apply for judicial review of the Board’s Decision

10.The applicant has filed Form 86 dated 20 February 2019 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, the applicant enclosed the hearing bundle and the Board’s Decision without specifying any ground 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 Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that she had had a fair hearing before the Board and she had nothing to say.

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 has given its reasons in support of its findings and conclusion. There is no valid reason from the applicant to challenge the Board’s Decision.

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.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

18.I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 6^th day of April 2022

(M.O. WONG)(Ms)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 6 April 2022 Mohammad Rashid Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 6 April 2022 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 10375/18/2/259/IN1971 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 3537/17 (Formerly RBCZ 3001830/14) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)