Mohammed Abdullah Hel Maroof v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1230/2019

[2023] HKCFI 2983

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1230 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.

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 16 March 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).  His application filed on 8 May 2019 is late.  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, his application is dealt with 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 22 September 2006 and was permitted to stay until 6 October 2006. However, he did not depart and had overstayed since 7 October 2006.  On 3 May 2007, he was arrested by the police.  On 28 May 2007, he raised a torture claim, which was rejected.  Afterwards, he failed to report recognizance and had absconded since 23 August 2011.  On 13 January 2015, he was arrested by the police.  On 19 January 2015, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by his two stepbrothers, Moshim and Masum, due to a land dispute.

5.In short, the applicant’s father died from heart attack in 2003, leaving no will about the distribution of the family land.  The families of the applicant and the stepmother had different views on the arrangement.  From 2003 to 2004, there were two incidents in which the applicant was threatened and assaulted by his stepbrothers and their men.  Nevertheless, the applicant and his natural mother did not compromise. 

6.On 4 July 2006, Moshim brought some men and assaulted the applicant for not signing the documents they requested.  Later, the applicant escaped to live with his friend.  On 21 September 2006, the applicant fled to Hong Kong for protection.  Details of his claim are set out at paragraph 8 of the Notice of Decision dated 16 June 2017 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 past events indicated that the level of risk of harm upon refoulement was low [12]-[16]; (ii) state protection would be available to him [17]-[26]; and (iii) internal relocation was a viable option [27]-[31]. 

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board.  On 28 November 2017, the Board conducted an oral hearing for his appeal, during which the applicant chose not to give evidence and consented to relying on the written information in the papers [9].

10.The Board recapped the applicant’s claim and his personal background [17]-[28].  At the outset, the Board proceeded its analysis on the basis that the applicant believed that he was entitled to one half of the disputed land and it was within his rights to sell or refuse to sell the land [29].  It considered that, if the applicant agreed to do what his stepmother insisted, any threats would be dispersed [30].  It also considered that internal relocation was a viable option for the applicant and his objections as appeared in the hearing bundle to this conclusion were rejected by the Board [31]-[33]. Meanwhile, the Board further concluded that the alleged threats from the stepbrothers were never acted upon and thus would not materialize [34]. 

11.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

12.The applicant has filed Form 86 dated 8 May 2019 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of this application, he said that his life would be in danger if he returns to his country his enemy will kill him and his problem is with his step brothers because of land property dispute.

DISCUSSION

14.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 16 June 2018. The delay is more than 10 months. He has given no explanation for his delay and his application can be dismissed on this basis alone. 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 applicant had refused to give evidence before the Board. The Board, for the reasons it had given in the Board’s Decision, found that his claimed risks, could be alleviated by internal relocation.  The Board further found that the threats from his step-brothers would not be materialized. There is no valid ground from the applicant 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.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

21.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 30^th day of November 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