Rahaman Habib v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 737/2019

[2023] HKCFI 769

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 737 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 25 January 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 as a visitor on 3 March 2014 and was permitted to stay until 17 March 2014. He did not depart and had overstayed since 18 March 2014. On 21 March 2014, he was arrested by the police for overstaying. On 23 March 2014, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by his girlfriend’s family, particularly her father, as they objected the couple’s relationship.

5.According to the applicant, his girlfriend, Shirinuddin (“Shirin”), was from an influential family. Her father, Mohinuddin was a supporter of Trinamool Congress Party (“TMC”). The applicant started the relationship with Shirin in around 2009. Nothing eventful happened until 2014 when Mohinuddin found out about their relationship. He went to the applicant’s house with his son and threatened the applicant’s mother that they would kill the applicant as their family would not tolerate such unmatched relationship. As a result, the applicant escaped to other village. While he was away, he learnt from his friends that her girlfriend’s family still intended to kill him. Out of fear, he fled to Hong Kong for protection. Details of his claim are set out at paragraph 7 of the Notice of Decision dated 10 March 2017 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 level of risk of harm upon his refoulement was assessed to be low. 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 [14]-[16]; (ii) the threats from Mohinuddin, if any, were not as imminent as claimed [17]; (iii) state protection would be available to him [18]; and (iv) internal relocation was a viable alternative [19].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 10 July 2018, the Board conducted an oral hearing for his appeal, during which he was assisted by an interpreter [4].

9.The Board noted that, while his evidence about the start of a relationship with Shrin was consistent, his evidence about the nature of this relationship varied [43]-[44]. His evidence about the details of the relationship was generalized, which was concerning since they had dated for around four years [45]. On the applicant’s own evidence, his relationship with Shirin was casual and not serious [46]. The Board also noticed that his evidence about the background of Shirin’s father and brother was vague, inconsistent and lacked credibility [49]-[58]. Insofar as the applicant’s evidence about the visits and threats, the Board found that Shirin’s father and brother did not harm the applicant’s family members and, after assessing the circumstances, the visits happened much earlier than the applicant’s departure for Hong Kong. It thus concluded that the applicant did not leave due to the fear of harm from Shirin’s family [59]-[67]. The Board further rejected the applicant’s assertion on the on-going threats [68]. In any event, the Board found that state protection and internal relocation were both available to the applicant [78]-[82].

10.For the above 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

11.The applicant has filed Form 86 dated 15 March 2019 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of his application, the applicant did not raise any specific 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 Decision 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.The Board had assessed his case and did not accept his evidence on the facts of his case. 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 6^th day of April 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