Sheikh Safiuddin Ali v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 903/2019

[2022] HKCFI 1151

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 903 of 2019

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:

Extension of time for the application for Judicial Review be refused &

the application for Judicial Review be dismissed.

Observations for the Applicant:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Decision dated 9 February 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”).  The applicant’s application filed on 2 April 2019 is late for about 11 months. I shall deal with this issue below.

2.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 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 on 29 May 2006 as a visitor and was permitted to stay until 12 June 2006.  He did not depart and had overstayed since 13 June 2006.  On 10 February 2009, he was arrested by police.  On 13 February 2009, he lodged a torture claim which was rejected on 7 June 2012 and the subsequent petition was also rejected on 2 August 2012.  On 18 and 19 October 2013, he lodged a cruel, inhuman or degrading treatment or punishment claim (“CIDTP”), which was assessed on all applicable grounds other than torture risk[1].

5.The applicant’s claim was made on the basis that, if refouled, he would be harmed or killed by members of Trinamool Congress Party (“TMC”).  In short, the applicant claimed to be a supporter of Communist Party of India (Marxist) (“CPIM”).  In around 2005, some TMC members attacked his brother.  While one of the attackers’ father apologized to the applicant’s father, the applicant took revenged against the two attackers with bamboo stick.  Subsequently, some TMC members visited the applicant’s house and blamed him for stirring up the trouble.  The applicant escaped to another city.  In April 2006, he was assaulted by TMC members, among whom were the two attackers.  Out of fear, the applicant eventually fled to Hong Kong for protection.  Details of his claim were set out at paragraph 9 of the Notice of Decision dated 10 May 2016 by the Director (the “Director’s First Decision”) and paragraphs 26 to 35 of the Board’s Decision as described below.  

The Director’s Decisions

6.The Director considered his application in relation to the following risks:

(1)   risk of violation of the right of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (“BOR 2 risk”);

(2)   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

(3)   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 way of the Director’s First Decision, the Director refused the applicant’s claim on BOR3 risk and Persecution risk.  The Director found that the level of risk of harm upon his refoulement was assessed to be low because (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [17]-[18]; (ii) state protection was available to him [19]; and (iii) internal relocation was a viable option [20]. In the Notice of Future Decision dated 7 September 2017, the Director also rejected the applicant’s claim on BOR2 risk (the “Director’s Second Decision”) for the reason that there was no evidence to show that his right of life under BOR2 would be violated upon his return.

8.For simplicity, the Director’s First Decision and the Director’s Second Decision will be referred to collectively as “the Director’s Decisions”.

The Board’s Decision

9.The applicant appealed the Director’s Decisions to the Board.  The Board scheduled an oral hearing on 10 January 2018 for his appeal.  As a preliminary issue, the Board noticed that the applicant’s notice of appeal/petition was filed on 2 June 2016, which was late by eight days.  It considered the relevant circumstances and found that the applicant had in fact filed the notice of appeal within time and, in any event, there were special circumstances to allow the late filing [4]-[10].  On the date of the hearing, the applicant was assisted by an interpreter [11].  

10.The applicant confirmed before the Board that he did not do anything to the members of TMC; that he never assaulted any of them prior to the assault in April 2006 and that he never revenged against his brother’s attackers.  The only reason he was attacked by the TMC members, on his own evidence, might be that he was connected with his brother [37].

11.The Board found that the applicant’s evidence was inconsistent and lacked documentary proof [38].  It listed out several glaring inconsistencies, such as the applicant’s version of election did not sit well with the objective evidence [42]; his claim that TMC was the same party with Bharatiya Janata Party contradicted with the country of origin information [43]; his accounts of the attacks varied considerably [44]; and his retraction at the hearing in relation to his alleged revenge against the TMC members was problematic [45]. Insofar as the applicant’s evidence on his brothers, the Board also found that they were not credible [46]-[54].  In this light, the Board refused to accept the applicant’s claim that he would face any risk of harm because of his brothers [55]-[60].  In any event, internal relocation to Delhi was an option open to the applicant [61]-[67].

12.For the aforesaid reasons, the Board rejected the applicant’s claim and dismissed his appeal.

Application for leave to apply for judicial review

13.The applicant filed Form 86 on 2 April 2019 for leave to apply for judicial review of the Board’s Decision.

14.In his affirmation in support of his application, he said the Board disregarded his dangerous situation.

DISCUSSION

15.As mentioned in paragraph 1, the applicant’s application is late. The Court has to consider the length of the delay, the reasons for the delay, the prospect of the intended application and the prejudice to the putative respondent if extension of time is granted. Also, the Court should not grant extension for a hopeless application. See AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 and Re Adumekwe Rowland Ejike [2019] HKCA 702, §19. I shall, therefore first consider the merit of the applicant’s case.

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 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).

17.The Court will bear in mind that the Board’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.The applicant has not raised any valid ground to challenge the Board’s Decision.

20.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.

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

CONCLUSION

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

Dated the 25^th day of April 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