Mohammed Ansar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 980/2019

[2023] HKCFI 1968

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 980 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:

1.  The extension of time for the application 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.The applicant applies for leave to apply for judicial review of the Decision dated 30 April 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). His application filed on 10 April 2019 is late.[1]  The deadline for the application is 30 July 2018. The delay is serious. 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 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 on 2 October 2007 as a visitor and was permitted to remain until 16 October 2007. He did not depart and had overstayed since 17 October 2007. On 27 October 2007, he was arrested by the police for overstaying. On 14 November 2007, he raised a torture claim which was later rejected on 21 February 2012. On 18 March 2014, he lodged a non-refoulement claim. His claim was assessed on all applicable grounds other than that on torture risk[2].

5.The applicant claimed that, if refouled, he would be harmed or killed by (i) the son of his moneylender due to an outstanding loan; and (ii) a police officer whose wife was imprisoned for inflicting harm on him. According to the applicant, he borrowed a sum from Seikh for his garment business. However, he was defrauded by his customer. As a result, he was unable to repay the loan. Seikh started to chase for repayment in March or April 2007 with threats. One day in April 2007, Seikh visited the applicant’s house with seven to eight males. They assaulted the applicant with wooden sticks. The applicant’s report to the police was of no avail as Seikh was influential. Despite he moved to Bombay, Seikh still inquired his whereabouts. As Seikh was too powerful in his home village, the applicant escaped to Hong Kong. While his family had been repaying the loan, it was still not sufficient to settle the whole sum. In around 2014 or 2015, Seikh passed away. His son Saleem succeeded his moneylending business. Since Saleem was notorious, the applicant feared that his life would still be in danger if refouled.

6.In addition, the applicant claimed that, in 1999, he was injured while playing cricket and his injuries were attributed to a woman who was the wife of a police officer. The applicant’s family sued that woman. She was detained for a few days. Despite the police officer attempted to bribe the applicant’s family to settle the case, they refused. The woman was sentenced to six months’ imprisonment. In around 2005, the police officer was transferred to the applicant’s locality and had been harassing the applicant’s family. The applicant claimed that he was often assaulted by people who he believed were sent by the police officer, and that he was threatened and often wrongly accused by the police officer. In light of these risks of harm, the applicant decided to seek protection in Hong Kong. Details of his claim are set out at paragraph 12 of the Notice of Decision dated 28 November 2016 by the Director (the “Director’s Decision”).

The Director’s Decision

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

a.  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”);

b.  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

c.  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”).

8.By way of the Director’s Decision, the Director dismissed the applicant’s claim. In elaboration, the Director found that (i) the applicant’s allegation that he would be targeted and subject to imminent risk of harm from Saleem was not reliable [23]; (ii) the ill-treatments allegedly inflicted by the police officer failed to attain a minimum level of severity [24]; (iii) the dispute with Saleem was a private one without state involvement [25]; (iv) state protection would be available to him [26]-[29]; (v) internal relocation was a viable option [30]-[32]; and (vi) his behavior was inconsistent with someone who genuinely feared a risk of harm [33].

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. On 26 March 2018, the Board conducted an oral hearing for his appeal, during which the Board clarified certain matters with him [41]. The applicant supplemented that, inter alia, there was a warrant issued against him in 2014 [42].

10.Having considered all the evidence, the Board found that Seikh never intended to harm or kill him. Instead, he only intended the applicant to repay the loan [46]. Meanwhile, there was no evidence that Saleem had ever chased the applicant for repayment and it had been seven to eight years since the applicant left India [47]. Even taking the applicant’s case to the highest, the Board noted that Saleem did not cause any troubles to the applicant’s parents who had been repaying the loan. This was a strong indicator that Saleem only intended the settlement of the loan [48]. In these premises, the applicant’s claimed risk of harm from Saleem was groundless [49].

11.Insofar as his claimed fear of harm from the police officer was concerned, the Board found that, on the applicant’s evidence, the grudge was in fact between the applicant’s parents and the police officer. Meanwhile, there was no evidence that the attackers who assaulted the applicant were sent by the police officer [50]-[51]. There was also no indication that the police officer continuously harassed the applicant’s parents [52]. As to the warrant issued in 2014, the Board considered that, if it was legally issues, it was for the Indian authorities to deal with [53]. In any event, internal relocation was a viable option for the applicant [61]-[66].

12.In light of the aforesaid, the Board concluded that the applicant’s claim was without merits and thus dismissed his appeal.

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

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

14.In his affirmation in support of his application, he said he is not satisfied with the Director’s Decision and the Board’s Decision as they were made without careful consideration of his case.

DISCUSSION

15.As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. The deadline of his application is on 30 July 2018. The delay is more 8 months. He has given no explanation for his delay and his application can be dismissed on this basis alone. However, I shall first consider the merits of the applicant’s case.

16.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)

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

18.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.”

19.The Board had assessed his evidence and, for the reasons given above, rejected his evidence on the facts of his claim. The ground set out in paragraph 14, supra is only his opinion without any evidence in support. It is not valid to challenge the Board’s Decision.

20.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.

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

CONCLUSION

22.Therefore, I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 8^th day of August 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