Ait Mazzih Younes v. Torture Claims Appeal Board

HCAL 282/2019

[2022] HKCFI 1954

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 282 of 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 33-year-old national of Morocco who last arrived in Hong Kong on 23 June 2016 as a visitor with permission to remain up to 23 July 2016 when he did not depart and instead overstayed, and was arrested by police some 6 months later on 12 January 2017 for overstaying and the offence of assault for which he was subsequently convicted and sentenced to prison for 12 weeks, and upon his discharge from prison and was referred to the Immigration Department for deportation, he raised a non-refoulement claim on the basis that if he returned to Morocco he would be harmed or killed by his creditor over his unpaid debts. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Zanqat Sidi Maskour, Tinghir, Morocco in Amazigh ethnicity. After leaving school he assisted in his father’s carpentry business, and joined the Ghighoch Party to fight for the rights of the Amazigh people for official recognition of their culture and language.

3.In late 2013 his younger brother required medical treatments for his bone disease, for which the Applicant in 2015 borrowed a loan from a local money-lender repayable within 2 years.

4.After making the loan to the Applicant, the money-lender asked him to provide information about the Ghighoch Party for the purpose of assisting the government to monitor the party’s activities, but when the Applicant refused, the money-lender demanded that he repaid his loan forthwith and threatened to teach him a lesson.

5.A few days later while he was on his way home from work, the Applicant was attacked by several men with sticks and knives that he suffered injuries and was later taken to the hospital for medical treatments.

6.After the assault the Applicant became fearful for his life, and so he went with his girlfriend from Hong Kong to various towns and cities in Morocco to stay away from his home district, and after his girlfriend had returned to Hong Kong, he then stayed in Casablanca and Marrakesh until 22 March 2016 when he departed for Hong Kong where he married his girlfriend who then applied for a dependent visa for him before he returned to Morocco on 20 April 2016, but later when he heard that the money-lender was looking for him everywhere, he departed Morocco again on 22 June 2016 for Hong Kong where he subsequently overstayed.

7.On 12 January 2017 he was arrested by police for overstaying and for assault, for which he was subsequently convicted and sentenced to prison for 12 weeks, and after his discharge from prison and was referred to the Immigration Department for deportation, he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 14 August 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).            

8.By a Notice of Decision dated 28 November 2017 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

9.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his creditor upon his return to Morocco as low due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any intention of the money-lender to seriously harm or kill him other than to put pressure on him to repay his loan, nor is there any evidence of any interest of the Moroccan authorities in the Applicant over his alleged involvement in the Ghighoch Party given the fact that he was able to leave and re-enter the country without any problem, that in any event his problem with his creditor was a private monetary dispute between them without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Morocco with a large population of 34 million people spread across a vast territory of more than 446,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of Morocco away from his home district in large cities such as Casablanca or Marrakesh where he had stayed before without incidents and where it would be difficult if not impossible for his creditor to locate him.

10.On 7 December 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended 2 oral hearings on 12 and 14 June 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 13 September 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

11.In its decision the Board found inconsistencies, contradictions and lack of details in the Applicant’s evidence that it doubted the credibility of his claimed fear of harm from his creditor or the Moroccan authorities due to his alleged political activities which was further undermined by his failure to raise his claim upon his first arrival in Hong Kong until after his arrest by the police months later that it rejected his claim of having borrowed a loan from the money-lender which led to their dispute over his refusal to provide information about the Ghighoch Party or of any fear of harm from the Moroccan authorities over his alleged political activities that it concluded that the Applicant faces no real risk of any of the proscribed harm from anyone upon his return to Morocco that his claim for non-refoulement protection failed on all applicable grounds.  

12.On 30 January 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or his supporting affirmation of the same date, and in his subsequent written submissions dated 24 December 2021 in which he stated that the Board’s decision is unreasonable by criticizing its various findings based on relevant COI in such vague and general terms without any details or particulars as to how the Board had erred in its assessment of such COI, nor did he provide any of his own COI by way of rebuttal or in support of his claim.

13.By then the Applicant was also out of time with his application, as Order 53 rule 4(1) of the Rules of High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

14.As the last day of the three-month period for him to file his Form 86 fell on 13 December 2018, the Applicant was therefore almost 7 weeks late with his application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

15.In the Applicant’s case, a delay of almost 7 weeks must be considered as very substantial and inordinate, for which the Applicant did not provide any explanation in his Form or affirmation, and as the record shows that the decision was sent on the same day to his last reported address without being returned through undelivered post, I am unable to see any good reason for his serious delay.

16.As for the merits, if any, of his intended application, as noted above the Applicant’s complaints of the Board’s decision are in my judgment just some vague and bare assertions without proper details or elaborations as to how the Board had erred in its assessment of the relevant COI or its determination of his claim or appeal that I do not find any of them reasonably arguable for his intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any merits in his intended application either.   

17.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

18.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 28 – 102 of its decision with the benefit of hearing him during 2 hearings in his oral evidence and his answers to questions raised of his claim in 2 hearings, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.  

19.The fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim if true from his creditor is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Morocco, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

20.Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

21.Furthermore, the Applicant recently on 30 May 2022 filed an affirmation requesting to withdraw his application as his family in Morocco has already settled and repaid his debts and hence there is no more threats against him that he wants to return to his home country. 

22.In the premises, as I am for the reasons given not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, and given his latest confirmation that his problem in his home country has already been resolved that it is now safe for him to return to Morocco, I accordingly dismiss his leave application.

Dated the 28^th day of June 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