Hussain Abid v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 723/2019

[2023] HKCFI 670

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 723 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 1 March 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”), I shall deal with his application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant is a national of India. He entered Hong Kong as a visitor on 13 July 2016 and was permitted to stay until 27 July 2016. He did not depart and had overstayed since 28 July 2016. On 28 July 2016, he surrendered himself to the Immigration Department and lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by his creditors, Mehmood Alam, Mohsin Alam, Inamul Hag and Kamrul Udha.

5.In short, the applicant borrowed loans from the four creditors from December 2013 to the beginning of 2014. When he defaulted payments, the four creditors threatened and assaulted him. The creditors were either connected with the politicians or were rich and influential. Fed up with the threats, the applicant decided to flee to Hong Kong for protection. Details of his claim are set out at paragraph 7 of the Notice of Decision dated 13 February 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

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

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

b.  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”);

c.  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

d.  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 dismissed the applicant’s claim as the claimed fear of harm upon refoulement was groundless. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [12]; (ii) his previous injuries failed to attain a minimum level of severity [13]; (iii) state protection would be available to him [14]; and (iv) internal relocation was a viable alternative [15].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 21 November 2018, the Board conducted an oral hearing for his appeal, during which he was assisted by an interpreter [7].

9.The Board clarified the applicant’s claim with him at the hearing [17]-[49]. In the applicant’s notice of appeal, he mentioned that his goods were sized by the India customs which led to his default in paying the loans [16]. Having considered all the evidence, the Board accepted that he ran an unregistered business and his goods were seized, leading to the unpaid debts. However, the Board refused to accept the existence of the loans nor did it accept that the applicant had outstanding debts. As such, the Board was not persuaded that the applicant or his family had ever been threatened or assault for the purpose of the alleged debts [48]. For these reasons, the Board rejected the applicant’s claim and dismissed his appeal.

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

10.The applicant has filed Form 86 dated 14 March 2019 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, the applicant did not raise any specific ground.

DISCUSSION

12.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).

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

14.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.”

15.The Board had rejected his evidence in support of his claim. There is no valid reason to challenge the Board’s Decision.

16.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.

17.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

18.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 21^st day of March 2023

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