Ali Ashif v. Torture Claims Appeal Board

HCAL 1870/2020

[2022] HKCFI 2140

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1870 of 2020

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:

1.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 29 April 2020 refused; and

2.  the application for leave to apply for Judicial Review dismissed.

Observations for the Applicant:

1.The Applicant is a 30-year-old national of India who arrived in Hong Kong on 30 August 2015 as a visitor with permission to remain up to 5 September 2015 when he did not depart and instead overstayed, and on 9 September 2015 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by the family of his former girlfriend who opposed their relationship and/or by his creditor over his outstanding debts. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Khidderpore, Kolkata, West Bengal, India where he dated his girlfriend while still at school, but when his girlfriend’s family discovered his bad habit of drug taking, they demanded that he ended the relationship, and after one occasion when he was beaten by her brother and friends with hockey sticks, he became fearful for his safety and stayed away from his girlfriend.  

3.After leaving school the Applicant worked in various jobs, and in 2013 he started his own business trading in mobile phones and accessories in his home district by borrowing a loan from a local money-lender repayable within one year and with monthly interest payments.

4.In June 2014 while he was on holiday elsewhere, his business partner sold all his stocks and disappeared with the money, and as a result the Applicant lost his business, but when he was unable to repay his loan, and when his creditor made death threats against him, he fled the country on 30 August 2015 for Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 7 July 2017 with legal representation from the Duty Lawyer Service (“DLS”) but failed to attend any scheduled screening interviews before an immigration officer due to alleged medical reasons.

5.While being released on recognizance pending the determination of his claim, the Applicant was arrested by police on 6 January 2017 for drug trafficking for which he was subsequently convicted and sentenced to prison for 5 months.           

6.By a Notice of Decision dated 31 July 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”).

7.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 former girlfriend’s family or his creditor upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any further threats from his former girlfriend’s family since 2012 that there is no reason why there would still be any adverse interest in him all these years since he ended the relationship, nor is there evidence of any real intention of his creditor to seriously harm or kill him other than to put pressure on him to repay his loan, that in any event those were private personal or monetary disputes without any official involvement that state or police protection would be available to the Applicant if resorted to upon his return to India, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in India with a large population of 1.2 billion people spread across a vast territory of more than 3 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied young adult with working experience to move to other part of India away from his home district in large cities such as New Delhi where it would be difficult if not impossible for anyone to locate him.

8.On 15 February 2019 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but as it was deemed to have been filed outside the 14-day period required under Section 37ZS(1) of the Immigration Ordinance, and in pursuance of Section 37ZT(2) of the Ordinance, the Board proceeded to decide as a preliminary decision without a hearing whether to allow the late filing of the Notice of Appeal, and by a decision dated 29 April 2020, it refused to allow the late filing of the Applicant’s Notice of Appeal.

9.In its decision the Board found the Applicant’s Notice of Appeal to have been filed almost 1 ½ year late, that it was a very substantial and inordinate delay, that it did not find his explanations of having injured his leg or was in prison to be credible or acceptable in the absence of any details or supporting evidence to corroborate such bare assertions, that the Applicant had failed to put forth any proper ground of appeal against the Director’s decision, and that having considered the factual basis of his claim and the full reasons of the Director for rejecting his claim that it did not find any matter known to the Board or revealed by the factual basis of the Applicant’s claim that might amount to any special circumstances that would make it unjust not to allow the late filing of the Applicant’s Notice of Appeal.      

10.On 18 September 2020 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, and in his supporting affirmation of the same date he merely repeated his claim as before that his life is in danger in his home country but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application.

11.By then the Applicant was also out of time with his application, as Order 53 rule 4(1) of the Rules of the 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 day 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 filed.  

12.As the last day of the 3-month period for him to file his Form 86 fell on 29 July 2020, the Applicant was therefore more than 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.

13.In the Applicant’s case, a delay of more than 7 weeks must be considered as very substantial and inordinate, for which he 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 do not see any good or valid reason for his serious delay. 

14.As for the merits, if any, of his intended application, as noted above the Applicant has failed to put forth any proper ground 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.

15.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.

16.In the Applicant’s case, the Board refused to allow the seriously late filing of his Notice of Appeal for the thorough and detailed analysis and reasoning set out in its decision upon taking into account of the Applicant’s stated reasons and all other relevant matters of fact within its knowledge under Section 37ZT (2) of the Ordinance including the merits of his appeal by way of reference to the factual basis of his claim as set out in the Director’s decision and the reasons for rejecting his claim as held to be relevant by the Court of Appeal in the cases of Re Khan Kamal Ahmed [2019] HKCA 377 and Re Qasim Ali [2019] HKCA 430. In the premises, 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 Board’s decision or any merits in the Applicant’s intended application.  

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

18.In the premises and 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 the Director’s consideration and assessment of the Applicant’s claim or in the Board’s decision to refuse the late filing of his Notice of Appeal.

19.For these reasons I am 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, I refuse to extend time and accordingly dismiss his leave application.

Dated the 15^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