Ansari Phool Mohammad v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3158/2019

[2025] HKCFI 2624

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3158 OF 2019

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.The applicant has lodged a claim for the status of a refugee with the Director of Immigration (“the Director”). The Director refused his claim and he appealed to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”). The Director and the Board had made the following decisions:

(1) The Director’s Notice of Decision dated 29 August 2014 (“the Director’s 1^st Decision”) dealing with Torture risk, BOR 3 risk and Persecution risks;

(2) The Director’s Further Notice of Decision dated 9 January 2017 (“the Director’s 2^nd Decision”) dealing with the BOR 2 risk;

(3) The Board’s Decision dated 18 December 2015 dealing with the Director’s 1^st Decision (“the Board’s 1^st Decision”); and

(4) The Board’s Decision dated 7 September 2018 dealing with the BOR 2 risk (“the Board’s 2^nd Decision”).

2.The applicant applies for leave to apply for judicial review of the Board’s 1^st Decision. His application is late. His application shall not be later than 3 months from the date of the Board’s 1^st Decision[1], which expired on 18 March 2016. His application was filed on 24 October 2019, which was late for more than 3 years and 6 months. This issue will be dealt with below.

3.The applicant asked for a hearing. He appeared before the Court on 26 May 2025.

4.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

5.The applicant, aged 43, is a national of India. According to records, the applicant last arrived in Hong Kong on 9 June 2008 but was overstaying since 24 June 2008 and was arrested by police on 6 January 2009. In due course, the applicant lodged his non-refoulement claim.

6.The applicant’s claim was based on his fear of being harmed or killed by his creditor and his associates because of his default in loan repayment.

7.According to the applicant, he was unable to repay a loan that was borrowed from the head of his village and was a member of the Rashtriya Janata Dal political party. The applicant claimed that the creditor and his men assaulted him in two separate incidents, which caused him to flee. Details of his claim are set out at paragraph 6 of the Director’s 1^st Decision.

The Director’s Decisions

8.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”).

9.By way of the Director’s 1^st Decision, the Director assessed the applicant’s claim on all applicable grounds except BOR 2 risk and dismissed his claim. In summary, the Director found that the level of risk of being harmed or killed by his debtor was assessed to be low, and the low intensity and frequency of past ill-treatment in the past was indicative of a small future risk of harm [12-21]l that reasonable state protection was available [22-51]; and that internal relocation alternatives were available and reasonable [52-62].

10.By way of the Director’s 2^nd Decision, 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 [3]; and that having carefully reviewed the applicant’s claim, in the absence of additional information, it was considered that the applicant failed to establish BOR 2 risk [5-6].

The Board’s Decisions

11.The applicant appealed the Director’s 1^st Decision to the Board. On 2 April 2015, the Board conducted an oral hearing for his appeal. At the hearing, the applicant answered questions from the Board and both parties made submissions [6].

12.Having considered the evidence, the Board found that the applicant failed to establish that the applicant would be in danger of being subjected to torture, BOR 3, or persecution [44, 49, 51]. In any event, the Board found that state protection was available [34, 45]. In conclusion, the Board held that the applicant’s claim failed under all applicable grounds besides BOR 2 risk. It therefore dismissed his appeal and confirmed the Director’s 1^st Decision.

13.On 7 February 2017, the applicant appealed the Director’s 2^nd Decision to the Board. He was late for 18 days as time expired on 25 January 2017 to file his notice of appeal. The Board found that there was no reason to allow the late filing of the appeal under section 37ZT(3) of the Ordinance. The Board therefore dismissed his appeal and confirmed the Director’s 2^nd Decision.

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

14.The applicant filed the Form 86 on 24 October 2019 for leave to apply for judicial review of the Board’s 1^st Decision. The applicant’s application is significantly out of time for over 3 years. The applicant did not put forth any reasons or valid grounds for his delay or for his application.

15.In the applicant’s affirmation in support of his application, the applicant exhibited documents including the Board’s 1^st and 2^nd Decisions, the Director’s 1^st Decision and the Director’s 2^nd Decision. He deposed that the documents would provide the court with a more complete picture but failed to put forth any valid grounds for his application.

DISCUSSION

16.As mentioned in paragraph 2, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the applicant’s case.

17.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that he did not think the Board was wrong. But he asked this Court to review its decisions.

18.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.”

19.For the reasons the Board has given above, the Board found that the applicant will not be subjected to any of the applicable risks if he returns to his country. The applicant has not raised any valid ground to challenge the Board’s findings. There is no reason for this Court to interfere with the Board’s 1^st Decision

20.In the circumstances, the applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s 1^st Decision.

21.As the applicant fails to challenge the Board’s 1^st Decision, any application against the Board’s 2^nd Decision is bound to fail as the Court of Appeal in Kulwinder Kaur v Director of Immigration and Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2022] HKCA 48, Hon Chu, JA (as she then was), Barma JA and Au JA ,7 January 2022, held:

“59. … upon determining that there is no BOR 3 risk, there is no arguable ground for any BOR 2 risk: see AA v Sweden (2017) 64 EHRR 20 at [52] and [96]; RM v Gerard Paul Muttrie Esq (unrep., HCAL 166/2015, 3 March 2016) at [52].”

DISPOSITION

22.I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s 1^st Decision. Accordingly, I dismiss his application.

The applicant appeared in person.