Moazzam Firoze v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2581/2019

[2025] HKCFI 886

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2581 OF 2019

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BETWEEN

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J U D G M E N T

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THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 29 August 2019 of the Torture Claims Appeal Board dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.The applicant asked for a hearing. He appeared before the Court on 24 February 2025.

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, aged 32, is a national of India. He came to Hong Kong as a visitor and was allowed to stay until 12 December 2015. He overstayed since 13 December 2015 and surrendered to the Immigration Department on 14 December 2015. He lodged his non-refoulement claim by written signification on 30 August 2016 on the basis that, if refouled, he will be harmed or killed by Abu Zahid (“his creditor”) on account of his loan dispute with him.

5.According to the applicant, he was running a shop selling products like mobile phones, laptops and video games and he had borrowed money from his creditor for his business. In August 2015, his shop was burnt down because of short circuit. His creditor had sent 4 to 5 people to demand repayment of the loan. As he was unable to pay up, those people hit him with bare hands. He sustained injuries of bruises and swellings on his body, particularly his chest and face. He reported to police, but he was detained in a cell in the police station for around 2 days. He was bailed out. His creditor threatened to take him to somewhere and cut open his body and take his organs for sale if he did not repay his loan. He therefore left India for Hong Kong.

6.Details of his claim are set out at paragraph 6 of the Notice of Decision dated 11 April 2018 (“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 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”).

8.By way of the Director’s Decision, the Director dismissed the applicant’s claim. In summary, the Director found that (i) the low intensity and frequency of the past ill-treatment from his creditor is indicative of a small future risk upon his return to India; (ii) state protection will be available; and (iii) internal relocation is viable. [11]-[18]

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. On 15 April 2019, the Board conducted an oral hearing for his appeal.

10.Having considered the evidence, the Board found that the applicant’s claim was completely lacking in credibility and he therefore failed to establish that he will face any genuine and substantial risk that he will be subjected to the claimed ill-treatment. [33], [36]-[40]

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

11.The applicant has filed Form 86 dated 4 September 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 to challenge the Board’s Decision.

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 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).

14.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant complained that the Board did not accept his evidence and he asked the Court to review it.

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 applicant has raised no valid ground to challenge the Board’s findings.

17.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

18.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

The applicant appeared in person.