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

HCAL 1065/2019

[2022] HKCFI 3338

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1065 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 the Applicant being absent in open court;

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

1.  Extension of time for the Applicant to apply for leave to apply for Judicial Review be refused; and

2.  The application for leave to apply 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 16 August 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”). The deadline for making his application is 16 November 2017. The applicant’s application filed on 18 April 2019 is seriously late[1]. I shall deal with this issue below.

2.The applicant asked for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), a hearing date was fixed for him to appear before the Court. However, he was absent without prior notice to the Court. His application is therefore dealt with on paper.

The applicant

3.The applicant is a national of India. He entered Hong Kong on 23 October 2009 as a visitor and was permitted to stay until 6 November 2009. He did not depart and had overstayed since 7 November 2009. On 13 November 2009, he was arrested by the police for overstaying. On 15 November 2009, he lodged a torture claim, which he later requested a withdrawal on 25 October 2013. On 2 December 2013, he requested to reopen his torture claim. His request was acceded to and his torture claim was treated as a non-refoulement claim.

4.The applicant’s claim was made on the basis that, if refouled, he would be harmed or killed by his uncle, Wasim, due to a property dispute. In brevity, in around 2000, Wasim obtained a document authorizing himself to execute all the family properties. The applicant’s father was discontent with this arrangement and had arguments with Wasim. In late 2001, Wasim sought help from the applicant to bring a luggage to the airport. The applicant agreed. It turned out that the luggage contained a travel cheque which belonged to someone else. The applicant was intercepted but later released by an immigration officer. He suspected that it was a setup by Wasim who wanted to exclude the applicant as a legitimate heir of the family properties. In 2002, Wasim’s house was robbed and he told the police that the applicant was the suspect of the robbery. From 2002 to 2007, the applicant purposefully avoided confrontations with Wasim. In early 2007, the applicant was assaulted by Wasim’s nephew. Both of them sustained injuries and Wasim bribed the police, stating that it was merely a family dispute. Later, the applicant was advised to leave India to avoid any risk of harms from Wasim. Upon knowing that Wasim would leave for Dubai, the applicant returned to India from Hong Kong on 2 June 2009. However, he suspected that someone sent by Wasim’s nephew tailed him. One evening in 2009, the applicant experienced a shooting incident. Though not injured, he feared that the harms would materialize and thus eventually fled to Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 10 September 2015 by the Director (the “Director’s First Decision”).

The Director’s Decisions

5.The Director considered his application 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 (“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”).

6.By way of the Director’s First Decision, the Director refused the applicant’s claim on Torture risk, BOR 3 risk and Persecution risk. In elaboration, the Director found that (i) the absence or low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [12]-[15]; (ii) state protection would be available to him [16]; and (iii) internal relocation was a viable alternative [17]-[22].

7.In the Notice of Further Decision dated 22 February 2017, the Director also found that the applicant’s right to life would not be violated and thus dismissed his claim on BOR2 risk (the “Director’s Second Decision”).

8.For simplicity, the Director’s First Decision and the Director’s Second Decision will be referred to collectively as the “Director’s Decisions”.

The Board’s Decision

9.The applicant appealed the Director’s Decisions to the Board. On 25 April 2017, the Board conducted an oral hearing for his appeal, during which he was assisted by an interpreter and clarified matters in his claim [14].

10.Having considered the evidence, the Board concluded that the applicant’s claim was not substantiated. The Board noted that (i) only in one incident did the applicant sustain injuries. It was the fight between himself and Wasim’s nephew. The applicant conceded that he initiated the fight; (ii) Wasim had no real intention to harm or even kill him; (iii) there was no evidence that the applicant was Wasim’s target as his father, brother and uncle were all legitimate heirs; (iv) the dispute with Wasim was private without state involvement; and (v) there was no state acquiescence [52]. Thus, the Board found that his claim on Persecution risk failed. Based on the same findings, the Board also rejected his claim on the remaining grounds. Further, the Board also found that internal relocation was viable for him [53]-[57].

11.For the above reasons, the Board rejected the applicant’s claim and dismissed his appeal.

Application for leave to apply for judicial review

12.The applicant filed Form 86 on 18 April 2019 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of his application, he set out the grounds, which I shall summarize below.

(1)  The Board had unlawfully fettered his discretion by refusing his appeal on the grounds that they did not satisfy the requirement.

(2)  The adjudicator acted in a procedurally unfair and unreasonable manner in dealing with his appeal.

(3)  The Board’s Decision is unfair and unreasonable.

(4)  The Board failed to meet the greater care and duty owed to a self-represented claimant.

(5)  The Board had relied on source of news which is not officially recognized or it is simply hearsay. The cases relied upon are also outdated. The Board therefore speculated that it would be safe for him to return to his country.

(6)  He was not given an opportunity to make written submission and submit evidence.

DISCUSSION

14.As mentioned in paragraph 1, the applicant’s application is seriously 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. I shall now 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 grounds set out in paragraph 13 do not assist the applicant. Ground (1) to Ground (5) are his bare assertions or opinions without any evidence in support. Ground (6) is a non-point as he was at the hearing and he was at liberty to say whatever he wanted to say to the Board.

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 that 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 7^th day of November 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