Mohammad Kamran v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2177/2018

[2022] HKCFI 2724

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2177 OF 2018

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 the Applicant in open court.

Order by Deputy High Court Judge K.W. Lung:

1.         The extension of time for the application for Judicial Review be refused; and

2.         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 24 March 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”). The applicant’s application, filed on 10 October 2018, is late^[1]. 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 20 March 2006 as a visitor and was permitted to stay until 3 April 2006.  On 1 April 2006, he travelled to Mainland China and returned to Hong Kong the next day. His visitor’s visa remained valid until 3 April 2006.  However, he did not depart and had overstayed since 4 April 2006.  On 6 January 2008, he was arrested by the police for overstaying.  On 12 January 2008, he lodged a torture claim.  Upon the commencement of the unified screening mechanism, his torture claim was taken as a non-refoulement claim.  He claimed that, if refouled, he would be harmed or killed by his creditor Karim.

5.According to the applicant, Karim was rich and well-connected with Communist Party of India (Marxist).  In 1996, when he was ten years old, he borrowed a loan from Karim and managed to repay within five years.  In around 2005 to 2006, he again borrowed a loan from Karim.  However, in early 2006, a customer stole his goods, creating a significant loss in the applicant’s business which resulted in a default of his loan payments.  Subsequently, Karim started to pose verbal threats through the applicant’s friend.  Nevertheless, Karim had never inflicted any physical harms on the applicant.  Out of fear, the applicant fled to Hong Kong for protection.  Details of his claim are set out at paragraph 7 of the Notice of Decision dated 13 November 2014 by the Director (the “Director’s First Decision”) and paragraphs 15 to 44 of the Board’s Decision. 

The Director’s Decisions

6.The Director considered the applicant’s claim in relation to the following risks:

(1)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(2)  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”);

(3)  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

(4)  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 dismissed his claim on the grounds of Torture risk, BOR3 risk and Persecution risk for the level of risk of harm from Karim was assessed to be low.  In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [14]; (ii) state protection would be available to him [15]; and (iii) internal relocation was a viable alternative [16]-[20]. 

8.On 9 May 2017, for reasons set out in the Notice of Further Decision, the Director concluded that his right to life would not be violated upon his return and thus rejected his claim on BOR 2 risk (the “Director’s Second Decision”).

The Board’s Decision

9.The applicant only appealed the Director’s First Decision to the Board[2]. The Board conducted an oral hearing on 18 September 2015 for his appeal, during which he was given the opportunities to answer questions and make submissions for his claim [7].

10.Having considered the applicant’s evidence, the Board found that his evidence was inherently implausible and lacked credibility [46].  The Board refused to believe that, in 1996, as a ten years old, the applicant could borrow a sum of 1 million rupees and repaid the sum within 5 years without difficulties.  He also gave contradictory accounts in relation to the second loan [47]-[50].  It was also implausible that he continued to conduct businesses with the customer who did not make payments to his goods [51].  It was equally unacceptable that the applicant was unable to name the cities he fled to before coming to Hong Kong [52]-[54].  In addition, he was unable to provide details of Karim [57] and the material parts of his claim consisted of hearsay evidence [58]-[60].  Even taking his claim to the highest, the applicant’s dispute with Karim was private in nature without state involvement [63]. 

11.For the above reasons, the Board rejected the applicant’s claim on Torture risk, Persecution risk and BOR3 risk and dismissed his appeal against the Director’s First Decision.    

Application for leave to apply for judicial review

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

13.In his affirmation in support of his application, he said he rejects the Board’s Decision because it disregards his dangerous situation.

DISCUSSION

14.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. The delay is serious. Nevertheless, I shall, first consider the merits of the applicant’s case.

15.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).

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

17.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.”

18.The Board rejected his evidence on the facts of the case. The applicant has not raised any valid ground to challenge the Board’s Decision.

19.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.

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

CONCLUSION

21.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 14^th day of September 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