Ziarat Ali v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3171/2019

[2025] HKCFI 2623

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3171 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 10 October 2019 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.

2.The applicant asked for a hearing. However, he was absent at the hearing on 26 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, aged 36, is a national of India. According to records, the applicant last entered Hong Kong on 29 August 2014 as a visitor but overstayed since 13 September 2014 and was arrested on 16 September 2014. In due course, the applicant lodged his non-refoulement claim.

5.The applicant’s claim was based on his fear of being harmed or killed by his creditor due to a loan dispute.

6.According to the applicant, his father was attacked by his creditor and his associates in around March 2013 due to failing to repay his loan. One day in around May 2014, the creditor bumped into the applicant and attacked him. The applicant sustained cuts and bruises over his body. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 12 January 2018 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 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 assessed the applicant’s claim and dismissed his claim. In summary, the Director found that: the level of risk of harm from the creditor is assessed to be low, and past ill-treatment inflicted upon the applicant did not attain a minimum level of severity [12-14]; state protection was available [15]; and internal relocation alternatives were available and reasonable [16].

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. The Board did not conduct a hearing and found that no worthwhile and effective representation could be made and there was no procedural unfairness to the applicant [24].

10.Having considered the evidence, the Board found that the applicant failed to substantiate his claim on all applicable grounds [32, 33, 35, 37]. In any event, the Board found that state protection was available to the applicant [30-31] and internal relocation was available and reasonable [39-44]. In conclusion, the Board held the applicant’s claim failed under all applicable grounds. It therefore dismissed his appeal and confirmed the Director’s Decision.

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

11.The applicant filed the Form 86 on 25 October 2019 for leave to apply for judicial review of the Board’s Decision. The applicant did not put forth any valid grounds for his application.

12.In the applicant’s affirmation in support of his application, the applicant exhibited the Board’s Decision but again did not put forth any grounds.

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.

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 was unrepresented and did not appear.