Case Document

100%Judiciary

HCAL 2318/2018

[2022] HKCFI 1361

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2318 of 2018

BETWEEN
	Irfan Ahmed	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 26 September 2018 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 on 25 April 2015 as a visitor. However, he overstayed and surrendered to the Immigration Department on 11 May 2015. He lodged non-refoulement claim by written submission. He claimed that, if refouled, he would be harmed or killed by his creditor because he was unable to repay the loan.

5.According to the applicant, he and his friend ran a garment business. He borrowed 700,000 Indian Rupees from Imtiaz, a loan shark in his area in 2012. The business failed and at the end, his friend had also absconded with all the money. He was unable to repay the loan. He was twice attacked by Imtiaz and his people, one at the end of 2012, the other in early 2014. On the first attack, he was slapped. His face was swollen and his nose bled. They threatened to kill him if he did not repay the money. On the second occasion, he was beaten by hockey sticks and his head bled. Another one hit him on his leg with hockey sticks. He heard Imtiaz threatening to kill him. He fell unconscious. He moved to live with his cousin in Jharkhand for a few months. Nothing happened during this period of time. Upon the advice of his family member, he left India for Hong Kong. Details of his story are set out in paragraph 6 of the Director’s Decision described below.

The Director’s Decision

6.The Director considered the applicant’s claim 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 26 April 2018 (“the Director’s Decision”), the Director refused the applicant’s claim. The Director found that the level of risk of being harmed or killed by Imtiaz and his people was assessed to be low as evidenced by the low intensity of past ill-treatment [10-13]; that state protection was available to him [14-17] and that internal relocation was an option open to him [18 & 19].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 17 August 2018, the Board conducted an oral hearing for his appeal.

9.The Board considered the evidence. It found that that applicant failed to establish that there were substantial grounds for believing that he would be subjected to the risks he claimed. The Board had set out its reasons in support of its findings, such as it found that Imtiaz’s threats of killing him were empty threats, pushing him to repay the loan only; that the evidence did not support his allegation that he left India out of fear of Imtiaz’s threats; that state protection was available to him and internal relocation was an option open to him too. See paragraphs 38-48 and 55-59.

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

10.The applicant has filed Form 86 dated 23 October 2018 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, the applicant exhibited the Director’s Decision and the Board’s Decision without setting out any 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 Decisions 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 has not been able to raise any valid reason 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 24^th day of May 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 24 May 2022 Irfan Ahmed 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 24 May 2022 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 11571/18/5/156/IN2286 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1044/18 (Formerly RBCZ 13183/15) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)