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

HCAL 3061/2019

[2025] HKCFI 2423

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3061 OF 2019

_____________

_____________

________________

J U D G M E N T

________________

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 13 September 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 23 April 2025. I shall deal with his application on the papers.

The applicant

3.The applicant, aged 45, is a national of India. He had been in and out of Hong Kong a number of times; the last occasion was on 5 February 2007. He came to Hong Kong with a false identity card. He lodged a torture claim, which the Director of Immigration Department (“the Director”) rejected. Later, he lodged a non-refoulement claim by written signification. He claimed that, if refouled, he will be harmed or killed by his business partner, Ahmed and Ahmed’s father-in-law, Zafar, who was very powerful and influential in the place where the applicant’s family live in India.

4.According to the applicant, in 2000 he and Ahmed formed a partnership of business distributing chemicals to clients. Each of them had contributed about 20,000 Lakhs Indian rupees (around HK400,000) to the partnership. They broke out and Ahmed demanded his money back. He was unable to pay the money to him. Ahmed’s money came from Zafar. Therefore Zafar also demand return of the money. Between 2004-2007 Ahmed and Zafar had sent people to attack the applicant. Ahmed had also taken part in the attacks as well. They attacked him with small knives, fist and hockey sticks. He was injured, with his face and lip bleeding. They had also sent death threats to him over the phone. He left India for Hong Kong on 16 January 2007.

5.Details of his claim are set out at paragraph 6 of the Notice of Decision dated 23 July 2018 (“the Director’s Decision”).

The Director’s Decision

6.The Director considered the applicant’s claim in relation to the following risks:

a.  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”);

b.  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

c.  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”).

7.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that from his enemies’ behaviours, his enemies did not have intention to cause serious bodily harm or kill him; that state protection will be available to him if he returns to India; and internal relocation will be viable. [13]-[25]

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 27 October 2014 and 22 July 2019, the Board conducted an oral hearing for his appeals on the torture claim and the claim on other applicable risks.

9.On 27 October 2014, the hearing was on the applicant’s torture claim appeal. He appeared before the Board, but he elected not to give evidence, the matter was adjourned to 22 July 2019 so that his appeal on the claim on other applicable risks should be dealt with together.

10.On the hearing on 22 July 2019, the applicant was absent despite notices having been given to him by phone and in accordance with statutory requirements. The Board proceeded to consider his appeals. It found that his story was plagued with vagueness and problematic issues. The Board found that his evidence was unreliable and thus, dismissed his appeals.

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

11.The applicant has filed Form 86 dated 17 October 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.

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.