Ahmed Iqubal v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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HCAL 1807/2019 [2024] HKCFI 2050 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1807 of 2019
Application for Leave to Apply for Judicial Review Following;
Order by Deputy High Court Judge K.W. Lung: 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 Decisions of the Director of Immigration Department (“the Director”) respectively dated 22 April 2015 and 24 April 2017 (“the Director’s Decisions”) and Decision dated 23 January 2017 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”). 2.The applicant’s application in relation to the Director’s Decision fail in limine as the Decision dated 22 April 2015 had been appealed to the Board[1] and the Decision 24 April 2017 should have gone through the procedure of appealing to the Board. The Court will only consider his application in relation to the Board’s Decision. 3.The applicant asked for a hearing. He appeared before the Court on 31 July 2024. 4.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 5.The applicant is a national of India. Between January 1998 and December 2007, the applicant entered Hong Kong under two different names: Iqubal Ahmad and Ekbal Ahmad. On 4 March 2008, he was arrested for overstaying. He lodged a non-refoulment claim on the basis that, if refouled, he would be harmed by Sanjay and his gang members because of a private dispute with them in 1996 or 1997. 6.According to the applicant, the dispute with Sanjay and his associates arose in May 2014 when he paid a visit to his brothers in Kolkata. One of his brothers was in monetary dispute with Sanjay and his associates, who attempted to extort money from his brother. He intervened and told his brother not to pay money to them. Sanjay was holding a revolver. He snatched the revolver from Sanjay and hit him with it, causing bleeding to Sanjay’s head. He was not seriously injured and he did not need medical treatment. His friend Mehtab advised him to leave India for his own safety. He came to Hong Kong for one month. He then heard a police friend that it was safe for him to return to India. He returned to India and started a garment business there. However, his brothers told him and Sanjay and his gangsters were still looking for him. He also learned that the gangsters hit his family members. In 2007, he came to Hong Kong and he never returned to India since then. He kept contact with his family and was told that the gangsters were still looking for him. He said the gangsters are attached to the Trinamool Congress Party, the current ruling party of West Bengal. 7.Details of his claim are set out at paragraphs 26-39 of the Board’s Decision. The Director’s Decisions 8.The Director considered the applicant’s claim in relation to the following risks:
9.By the Director’s Decision, the Director dismissed the applicant’s claim on Torture risk, BOR 3 risk and Persecution risk. In elaboration, the Director found that (i) the low intensity and low frequency of alleged ill-treatment in the past was indicative of a small future risk upon his return to India [14]. (ii) Sanjay and his gang members were not so powerful and influential as he alleged [15]; (iii) state protection would be available to him [16]; and (iv) internal relocation were available to him [17]. The Director further found that the applicant’s evidence was not credible [18]. 10.By the Director’s Notice of Further Decision dated 24 April 2017 (“the Director’s Further Decision”), the Director considered the applicant’s claim on BOR 2 risk and found that he failed to establish any real risk of any violation of BOR 2 risk upon his return to India. The Board’s Decision 11.The applicant appealed the Director’s Decision to the Board. He did not appeal the Director’s Further Decision to the Board. On 22 August 2016, the Board conducted an oral hearing for his appeal, during which he was assisted by an interpreter [14]. 12.Having considered the evidence, the Board came to the conclusion:
13.The Board then dismissed the applicant’s claim on the applicable risks. Application for leave to apply for judicial review of the Board’s Decision 14.The applicant has filed Form 86 on 28 June 2019 for leave to apply for judicial review of the Board’s Decision. 15.The applicant has attached a statement of grounds to Form 86. I shall summarize them as below.
DISCUSSION 16.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s 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. Before me, the applicant asked for leave to withdraw his application as his problems have been solved and he wants to return to his country. 18.Since I have considered his case in merit, I will set out the reasons that even if he proceeds with his application, he will fail. 19.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
20.The Board, for the reasons given above, found that the applicant’s claimed risks were unsustainable. 21.Those grounds under paragraph 15 do not assist him. Ground (1) and Ground (2) are untrue; Ground (3) to Ground (5) are his bare assertions without any evidence in support[2]. 22.There is no reason that the Court should interfere with the Board’s finding of the facts. 23.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision. CONCLUSION 24.Since the applicant applied to withdraw his application before the Court. I had explained the consequences of his application to him and he confirmed his application for withdrawal of this application, I shall accede to his request and dismiss this application. Dated the 13th day of August 2024
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 [1] Re: Moshsin Ali [2018] HKCA 549, Hon Lam VP and McWalters JA, 24 August 2018
[2] The Court of Appeal in Salim Ahmed alias MD Salim [2020] HKCA 244 held:
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Cases cited in this judgment