Ahmed Salauddin v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1109/2019

[2022] HKCFI 1803

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1109 of 2019

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 12 April 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 on 18 July 2005 as a visitor and was permitted to stay until 1 August 2005. His application for extension of stay was refused and he was required to depart on 4 August 2005. Nevertheless, he did not do so and had overstayed since 5 August 2005. On 14 May 2007, he was arrested by the police. On 4 June 2007, he lodged a torture claim, which was rejected on 24 October 2013. Thereafter, he lodged a non-refoulement claim on 7 January 2014, which was assessed on all the applicable grounds other than the torture risk[1]. His claim was made on the basis that, if refouled, he would be harmed or killed by Mumtaz or Mumtaz’s father because of a business dispute.

5.According to the applicant, he and his brother ran the family tailoring company, Blue Print, in 2000. His family business had dealings with Mumtaz’s family business, Double Horse. However, from August 2000 onwards, Mumtaz’s company started to default payments. The applicant’s brother constantly chased for full payments and the relationship between the two companies deteriorated. One day in August 2003, Mumtaz, together with some men, went to the applicant’s shop and had a fight with the applicant’s brother and the workers. The next day, the parties had a fight, during which the applicant’s brother and Mumtaz were both seriously injured. The day after the fight, Mumtaz’s family posed death threats to the applicant’s family. Out of fear, the applicant eventually fled to Hong Kong for protection. Details of his claim are set out at paragraph 9 of the Notice of Decision dated 12 April 2018 by the Director (the “Director’s Decision”) and paragraph 14 of the Board’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 violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

b.  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

c.  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 Decision, the Director rejected the applicant’s claim for the level of risk of harm upon refoulement was assessed to be low. In elaboration, the Director found that (i) the absence of past ill-treatments indicated an unlikelihood of future risk of harm [14]; (ii) state protection would be available to him [15]-[17]; and (iii) internal relocation was a viable alternative [18]-[22].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 16 January 2019, the Board conducted an oral hearing for his appeal, during which he answered the Board’s inquires [32]-[78].

9.Having considered the applicant’s evidence, the Board was not satisfied that the applicant’s claim was truthful [85]. In particular, the Board found that the applicant gave inconsistent accounts on both Blue Print and Double Horse, as well as the dealings between them [87]-[89]; [91]-[92]. Further, it noted that the applicant had submitted no documents to prove the business relationships between Blue Print and Double Horse [90]. In addition, the Board also considered that his evidence on whether he was ever harmed by Mumtaz contained significant inconsistencies which he failed to clarify during the hearing [93]-[95]. Meanwhile, the applicant also gave contradictory evidence on the fight between Mumtaz and his brother [96]-[98]. There was also no evidence on whether the applicant had ever reported to the local police [99] and it was only a bare assertion that Mumtaz’s family was influential [100]. In light of these inconsistencies, the Board concluded that the applicant was not a witness of truth [108]. In any event, the Board considered internal relocation a viable alternative for the applicant [109]-[110].

10.For the aforesaid reasons, the Board rejected the applicant’s claim on BOR 2 risk, BOR 3 risk and the Persecution risk and dismissed his appeal.   

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

11.The applicant has filed Form 86 dated 25 April 2019 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of his application, the applicant enclosed the Decisions of the Director and the Board without specifying any ground.

DISCUSSION

13.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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

15.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.”

16.There is no valid reason from the applicant 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.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

19.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 7^th day of July 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