Ahmed Munir v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3057/2019

[2025] HKCFI 2428

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3057 OF 2019

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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 6 September 2019 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decisions as described below.

2.The applicant asked for a hearing. However, he was absent at the hearing on 2 May 2025. I shall deal with his application on the papers.

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. On 20 May 2014, the applicant sought entry to Hong Kong from Shenzhen and was refused landing. In due course, the applicant lodged a non-refoulement claim.

5.The applicant’s claim was based on his fear of being harmed or killed by his debtor [his creditor] due to a loan dispute and because he was an active member of the All India Trinamool Congress Party (“TMC”).

6.According to the applicant, the applicant was first threatened in January 2014 for not being able to repay his creditor [described as his debt in the Director’s First Decision], and in February 2014, the creditor and 4 or 5 people attacked the applicant because he was unable to repay the principal. He did not file the case at the police station. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 11 May 2016 by the Director (the “Director’s First Decision”).

The Director’s Decisions

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 the Director’s First Decision, the Director rejected his claim as it was not substantiated and state protection would be available. In addition, internal relocation would be viable to mitigate or negate his risks.

9.By way of the Director’s Further Decision dated 12 July 2017, the Director assessed the applicant’s claim on BOR 2 risk and dismissed his claim. In summary, the Director found that the applicant did not provide further additional materials or facts [4]; and that having carefully reviewed the applicant’s claim, in the absence of additional information, it held that the applicant failed to establish BOR 2 risk [6].

The Board’s Decision

10.The applicant appealed the Director’s First and Further Decision to the Board. On 5 August 2019, the Board conducted an oral hearing for his appeal, and the Board found that there was no, or no reliable evidence and he failed to show there was a real chance that the claimed fear would materialize and that the claim was fabricated or wholly unreliable [80-90].

11.Having considered the evidence, the Board found that the applicant failed to establish any substantial or any grounds for the applicable grounds [91-94]. In conclusion, the Board held that the applicant’s claim failed under all applicable grounds. It therefore dismissed his appeal and confirmed the Director’s First and Further Decisions.

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

12.The applicant has filed Form 86 dated 16 October 2019 for leave to apply for judicial review of the Board’s Decision. He did not put forth any ground.

13.In his affirmation in support of his application, the applicant deposed that he cannot return to his country because his life is in danger, but he did not put forth any grounds or particulars.

DISCUSSION

14.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).

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

16.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.”

17.The applicant has raised no valid ground to challenge the Board’s Decision.

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

DISPOSITION

19.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 was unrepresented and did not appear.