Biju Mathew Alias Tom Thomas Mathew Alias Anthony Saviel Alias John George Joseph v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 667/2020

[2025] HKCFI 553

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 667 of 2020

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge Levy:

1.  The Form 86 is amended on the court’s own motion; and

2.  The Leave Application be dismissed.

Observations for the Applicant:

Introduction

1.By prescribed Form 86 filed on 16 April 2020, the applicant applied for leave to apply for judicial review (“Leave Application”). In the intended judicial review, while the applicant named the “Adjudicator” as the proposed party (see [4] below), the subject decision in respect of which relief is sought was stated to be “Appeal/Petition board office, decision of the Adjudicator is final on dated 30 Oct., 2017”.

2.In these proceedings, there are altogether two decisions of the Director of Immigration (“Director”) respectively dated 11 April 2011 and 30 October 2017 (respectively “Director’s First and Second Decisions”), and two decisions of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) respectively dated 11 May 2011 and 8 August 2019 (respectively “Board’s First and Second Decisions”). The Board’s First and Second Decisions respectively dismissed the Director’s First and Second Decisions rejecting the applicant’s non-refoulement claim.

3.It is apparent that the applicant’s Leave Application is in respect of the Board’s Second Decision. As the Board and the Director should have been the respective proper parties, the Form 86 will be amended accordingly on the court’s own motion.

4.As the applicant had requested for a hearing of the Leave Application, this court held a hearing on 2 January 2025. The applicant attended the hearing in person. After having heard from him, this court informed him that the decision would be reserved, and be sent to his updated address.

Background

5.The background as taken from the two respective decisions of the Director and the Board’s Second Decision referred to above can be briefly stated as follows.

6.The applicant is a national of India. He has come to Hong Kong in multiple occasions under different identities.

7.The applicant first came to Hong Kong on 23 August 1996 as a visitor under the identity of Mathew Biju. After the expiry of his visitor’s visa on 30 August 1996, the applicant did not depart. On 2 October 1996, he was arrested by the police for placing and selling marked oil. On 1 November 1996, the applicant was convicted of the offences of, among others (i) placing and selling of marked oil; and (ii) using an identity card relating to another person. After he had served his 10 and ½ months’ sentence, he was repatriated to India on 11 July 1997.

8.The applicant again came to Hong Kong on 27 May 1998 under the identity of Saviel Anthony. He again did not depart and was arrested on 17 July 1998. He was given a suspended sentence. On 7 August 1998, he was repatriated to India.

9.The applicant again arrived at Hong Kong on 1 July 1999 under the identity of Tom Thomas Mathew. He was arrested by a customs officer for importing goods which a forged trade mark was applied. He was also arrested at the Lo Wu control point on 12 July 1999 for suspected double identities. On 15 July 1999, the applicant was convicted and sentenced to 6 months’ imprisonment in relation to the use of a false identity. He was deported to India on 15 November 1999.

10.The applicant again came to Hong Kong on 17 December 1999 under the identity of Joesph John George. He was intercepted on 21 July 2000 for an investigation on double identities. On 26 July 2000, he was convicted of 2 counts of making false representation to an immigration officer, 1 count of using a false travel document and 1 count of breach of deportation order and was sentenced to a total 18 months’ imprisonment. On 31 July 2001, he was deported to India again.

11.In the present case, the applicant came to Hong Kong on 6 September 2006 under the identity of Mathew Biju. He was intercepted upon arrival, and was later sentenced to a total of 18 months’ imprisonment. On 3 October 2007, he was transferred to the Immigration Department after the completion of the imprisonment term. On 12 February 2008, he was released on recognizance.

12.On 27 March 2007, the applicant made a torture claim under the risk of torture[1], which was rejected by the Director in the Director’s First Decision. By the Board’s First Decision, his appeal against the Director’s First Decision was dismissed. The deportation order against the applicant was also suspended.

13.On 19 February 2016, the applicant was arrested by a customs officer for the offence of dealing with goods to which Dutiable Commodities Ordinance applies. On 25 May 2016, the applicant was convicted and sentenced to six weeks’ imprisonment. On 7 November 2016, the request for further suspension of the deportation order was refused.

14.On 9 January 2017, the applicant lodged a non-refoulement claim, which was considered under all applicable grounds other than the risk of torture- BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4] under the USM.[5] The claim was based on a fear that if refouled, he would be harmed or killed by his enemies because he was treated as a scapegoat in a murder case.

15.The applicant claimed that in 2002, he went to a Salvation Army Hostel to collect some insurance documents. After he had briefly chatted with a roommate called Varghese there, he left. However, after Varghese had been reported missing on 15 April 2002, the applicant was wanted by the police in connection with Varghese’s disappearance/murder. The applicant feared that he would be tortured and the police would frame up the case against him. Since Varghese had influential enemies who were government officials, the applicant believed that the police wanted to use the applicant as a scapegoat in the case.

16.In the Director’s Second Decision, the Director decided against the applicant’s claim on the above three-mentioned grounds. The Director assessed the claimed risk of ill-treatment to have been low, and the applicant’s assertions speculative. It was found that there was no evidence suggesting that the applicant was a target of the government. After having considered the country of origin information reports (“COI”), the Director was satisfied that state protection was available and that internal relocation alternatives were available and reasonable. Hence, the applicant’s appeal to the Board against the Director’s Second Decision.

17.On 7 February 2018, the applicant attended a hearing before the Board together with a Hindi language interpreter. Placed before the Board were forms completed by the applicant, records of interview and documents that he had previously submitted to the Director. During the hearing, the applicant said that nothing had happened to him since 2004 and the police officers had not returned to his parent’s house. Having regard to the time that had passed since the alleged incident, the Board had considered whether the applicant should be asked to provide further materials. However, the Board found that the updated COI in India was substantially the same as that discussed at the hearing. The Board was satisfied that a decision could be made on the basis of the materials submitted without any unfairness to the applicant. The Board found the applicant’s account lacked credibility and inherently implausible. The Board found that the applicant failed to provide a satisfactory explanation for the reason as to why he had been accused of murder. It was also found that there was no evidence showing that the applicant was wanted by police in India. The Board assessed that the risk of any harm befalling the applicant at the hands of the police to have been very low. In any event, the Board also found that it would not be unreasonable or unduly harsh for the applicant to internally relocate and state protection was available. The Board dismissed the applicant’s appeal and confirmed the Director’s Second Decision.

Legal principles applicable to judicial review

18.As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

Discussion and conclusion

19.The applicant’s Form 86 did not contain any grounds for seeking relief. In his supporting affirmation of the same date, he deposed that he was detained at the Castle Peak Bay Immigration Centre for a long time so he could not collect evidence and that his life was still in danger. Since the Leave Application was late for more than 5 months, and having regard to the contents of the applicant’s affirmation, I asked the applicant if he had any evidence to support the Leave Application. The applicant only told the court that in fact he was already released two weeks after the filing of the Leave Application. He still has not got any evidence as his sister got married and his father passed away. Apart from this, the applicant was not able to offer any explanation for the delay. Neither could he specify any mistakes or errors the Board was said to have made. It is plain that the applicant has not condescended to any particulars, in the Form 86 or otherwise, as to what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.

20.I consider that the applicant's delay of more than 5 months substantial. In considering whether to extend time to apply for judicial review, the court will have regard to: (a) the length of delay; (b) the reasons for the delay; (c) the prospect of success of the intended appeal; and (d) the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].

21.As stated above, the applicant has not provided any reasons for the delay. As such, the Court will only grant extension of time if his intended challenge has a real prospect of success: Re Kanwal Gulnaz [2021] HKCA 636 at [15]; Re Ansar Muhammad [2018] HKCA 227 at [8]; and Re MA [2019] HKCA 1020 at [18]

22.The Board’s Second Decision was arrived at with the benefit of a hearing, in which the Board had the opportunity of examining the applicant’s evidence in great detail. The Board’s assessment that the applicant’s lack of credibility and its findings of the availability of state protection and option of internal relocation are findings of fact, which the court in a judicial review will not interfere with.

23.Having rigorously examined the Board’s Second Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to all the grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness in the Decisions of the Director and the Board. In the absence of any specific grounds in support of the Leave Application, I find that it was perfectly open to the Board to come to its conclusion that the applicant failed to discharge his burden of proving the asserted fears and risks.

24.For these reasons, I am not satisfied that this court should grant leave to the applicant to file the Leave Application out of time or that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

Orders

25.The Form 86 is amended on the court’s own motion.

26.The Leave Application be dismissed.

Dated the 7^th day of February 2025

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