SHAIK ANSAR BASHA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3039/2019

[2025] HKCFI 2424

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3039 OF 2019

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BETWEEN

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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 5 April 2017 of the Torture Claims Appeal Board (“the Board’s Decision”). His application is late. His application shall not be later than 3 months from the date of the Board’s Decision[1], which expired on 5 July 2017. His application was filed on 15 October 2019, which is late for more than 2 years and 3 months. This issue will be dealt with 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 is a national of India. According to records, the applicant last arrived to Hong Kong on 5 July 2014 but was overstaying since 20 July 2014 and was arrested by police on 25 August 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 supporters of the Bharatiya Janta Party (“BJP”) because they accused the applicant of forcing BJP supporters to support the Indian National Congress (“INC”).

6.  According to the applicant, in or around May 2014, the BJP won the General Election in 2014 in his home area, and he was threatened by BJP supporters but was not hurt. In another incident a week later, the same BJP supporters stopped the applicant and his friend on their way and they attacked the applicant. He did not go to the hospital as he did not suffer any serious injury. Details of his claim are set out at paragraph 10 of the Notice of Decision dated 20 May 2016 by the Director (the “Director’s 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 way of the Director’s 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 and the harm and threat did not attain a minimum level of severity [17-21]; that reasonable state protection was available [22]; and that internal relocation alternatives were available and reasonable [23].

9.  By way of the Director’s Further Decision dated 23 January 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 [3]; and 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 [6].

The Board’s Decision

10.  The applicant appealed the Director’s Decision to the Board. On 16 February 2017, the Board conducted an oral hearing for his appeal. At the hearing, the applicant appeared without representation and confirmed the truth and accuracy of the information provided in his non-refoulement claim form [16].

11.  Having considered the evidence, the Board doubted the applicant’s credibility and reliability of his evidence [45-47] and found that the applicant failed to establish a case in respect of any of the applicable grounds [49-53]. In conclusion, the Board held the applicant’s claim failed under all applicable grounds. It therefore dismissed his appeal and confirmed the Director’s Decisions.

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

12.  The applicant filed the Form 86 on 15 October 2019 for leave to apply for judicial review of the Board’s Decision. The applicant’s application is significantly out of time with a delay of over 2 years. The applicant did not put forth any reasons or valid grounds for his delay or for his application.

13.  In the applicant’s affirmation in support of his application, the applicant exhibited the Board’s Decision, and he failed to put forth any valid grounds for his application.

DISCUSSION

14.  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. I shall consider the merits of the applicant’s case.

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.  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 Decision.

18.  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 Decision.

DISPOSITION

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