AHMEED SHAKIL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1956/2018

[2021] HKCFI 3656

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1956 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only; or
	consideration of documents and Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court (“RHC”), Form 86 is amended to the effect that the proposed respondent is the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”) and the interested party is the Director of Immigration (the “Director”).

2.  This is the applicant’s application for leave to apply for judicial review of the Decisions dated 12 April 2018 of the Board (“the Board’s Decision”).  His application filed on 18 September 2018 is late.  I shall deal with this issue below.

3.  The applicant does not ask for a hearing.  Pursuant to Order 53, rule 3(3) of the Rules of RHC, I shall consider his application on the papers.

The applicant 

4.  The applicant is a citizen of India.  He came to Hong Kong as a visitor on 4 June 2014.  He overstayed and was arrested by police.  He lodged non-refoulement claim with the Immigration Department by an undated written representation received by the Immigration Department on 6 August 2016.  He was released on bail, but he committed some immigration offences and was sentenced to 15 months’ imprisonment.

5.  The applicant claimed that, if refouled, he would be harmed or killed by Mohammad Firoz (“Firoz”) and/or members of the political party, India Trinamool Congress (“TMC”).  He had a grudge with Firoz because Firoz had relationship with his wife and her further eloped with her, bring along his younger son.  He divorced his wife.  Firoz was unhappy that he had divorced his wife.  The applicant was assaulted by Firoz together with his uncle.  They attacked him with fists.  He felt unconscious and was taken to hospital by other people.  The second assault was by Firoz and his uncle on his elder son, who was also beaten into unconsciousness.  In order to avoid Firoz, he had to live in various places.  He came to Hong Kong.  Details of his story are set out in paragraph 6 of the Director’s Decision described below.

The Director’s Decision

6.  The Director considered his application in relation to the following risks:

a.  risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“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”).

7.  By Notice of Decision dated 21 April 2017, the Director refused his claim for the reason that his claim was not substantiated. The Director found that there was no substantial evidence for believing that he would be subjected to the risks he alleged if he returned to India; that state protection would be available to him [16] and that internal relocation was an option open to him [20].

The Board’s Decision

8.  The applicant appealed against the Director’s Decision to the Board.  He attended before the Board on 26 February 2018. 

9.  The Board confirmed the Director’s Decision.  It further found that the applicant’s evidence was often vague and in material ways, inconsistent with his claims in the Notice of Claim Form [28].  It considered that his willingness to return to India in 2014 undermined the credibility of his claims there was any risk of harm to him in India [31].  It further found that the applicant was not a credible witness and it considered that he had fabricated the claims so as to create a basis upon which to apply for non-refoulement [32].  On these bases, the Board dismissed his claim on all of the above risks.

Application for leave to apply for judicial review

10.  The applicant filed Form 86 on 18 September 2018 for leave to apply for judicial review of the Board’s Decision.

11.  In his affirmations in support of his application, he set out the following grounds:

i.  the Board did not properly assess his claim;

ii.  he did not understand English and he had not been provided with legal advice, contrary to the Universal Mechanism Guidelines; and

iii.  he had not made submission of BOR 2 risk and he reserved his right to do so after obtaining legal advice.

DISCUSSION

12.  As mentioned in paragraph 1, 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.  The delay of about 5 months is, of course, serious.  However, I shall first consider the merits of the applicant’s case.

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

14.  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.”

15.  His grounds in support of this application do not assist his application.  To say that the Board had not properly assessed his case is only his opinion without any evidence in support of it.  The Board had a rather protracted discussion with him at the hearing.  The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 held the applicant is not entitled to free legal representation at every stage of the proceedings as he had already had duty lawyer’s service at the screening stage [22].  The Court of Appeal in Re Khan MD Omar [2019] HKCA 803, 19 July 2019 at §18 held that lack of language assistance is not a ground for judicial review.  His reservation of right to make further submissions on BOR 2 risk is not a ground in support of his application.  He should have prepared his submissions before making his application.

16.  The Court does not find any error of law or procedural unfairness in the Board’s Decision.  The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

17.  There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

18.  I therefore refuse to extend time for the applicant to apply for his intended judicial review.  Accordingly, I dismiss his application.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1