SHAIKH NIZAMUDDIN v. TORTURE CLAIMS APPEAL BOARD

HCAL 359/2020

[2025] HKCFI 1830

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 359 OF 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 46-year-old national of India who last arrived in Hong Kong on 6 October 2008 as a visitor with permission to remain as such up to 20 October 2008 when he did not depart and instead overstayed, and was arrested by police on 30 October 2008. After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim for protection on the basis that if he returned to India he would be harmed or killed by his creditor over his outstanding debts. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Kolkata, West Bengal, India. After leaving school he worked as a salesman in a garment shop in his home district, and in 2000 he started his own garment business by importing goods from China and Hong Kong for sale in his home district as well as a supplier for other shops in Kolkata.

3.  In 2006 he decided to expand his business with the help of a loan borrowed from a local money-lender with monthly interest payments payable until discharge of the loan which he managed to make from his business income.

4.  However, in late 2007 he suffered a heavy loss to his business after a major customer had disappeared with the supplied goods without payment, and when he started to default in his loan repayment, his creditor came with followers to threaten him and with a warning that he would be killed next time if he still failed to repay his loan.

5.  The Applicant therefore became fearful for his life, and so on 6 October 2008 he departed India for Hong Kong where he subsequently overstayed, and upon his arrest by the police he then raised his torture claim later taken as a non-refoulement claim for protection, for which he completed a Supplementary Claim Form (“SCF”) on 2 May 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  While released on recognizance pending the determination of his claim, the Applicant was again arrested for undertaking unauthorized employment, and for which he was subsequently convicted and sentenced to prison for 14 months and 3 weeks.

7.  By a Notice of Decision dated 23 June 2016 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

8.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his creditor and followers upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of his creditor to seriously harm or kill him other than to press him to repay his debts, that in any event it was a private monetary dispute between him and his creditor only without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in India with a large population of 1.2 billion people spread across a vast territory of more than 2.9 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities such as Delhi or Mumbai where it would be difficult if not impossible for his creditor to locate him.

9.  On 4 July 2016 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but before it could be heard or dealt with by the Board, the Applicant in writing on 5 April 2017 applied to withdraw his appeal, and by a letter dated 7 April 2017 the Board allowed the withdrawal and dismissal of his appeal for his stated reason, and also confirmed the Director’s decision on his non-refoulement claim as finally determined and disposed of.

10.  However, almost 3 years later on 10 March 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he just asserted that he disagrees “with the decision of the Immigration Department” as his life is in danger in India and that he does not to go back to his home country but without putting forth any proper ground for his intended challenge of either the decision of the Board or the Director.

11.  By then it is clear that the Applicant was also seriously out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

12.  As the last day of the three-month period for him to file his Form 86 as regard the board’s decision fell on 7 July 2017, the Applicant was therefore some 2 years and 8 months late with his application, never mind as regard the Director’s decision which would be even later, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

13.  In the Applicant’s case, a delay of 2 years 8 months must be considered as extremely substantial and inordinate, for which he explained at the hearing of his application that after withdrawing his appeal to the Board in April 2017, he was ready to return to India, but later he was informed by his family that the risk against him in his home country had re-appeared again that he was advised not to return, and so he has changed his mind and decided to continue with his appeal to the Board by applying to challenge its decision to withdraw his appeal and/or the Director’s decision in rejecting his non-refoulement claim, but he failed to provide any further details or particulars or evidence to corroborate his assertions, and as such I am not satisfied that he has provided a good or valid reason for his such serious delay.

14.  As for the merits, if any, of his intended application, as noted above that the Applicant has also failed to put forward any proper ground for his intended challenge, or identify any error of law or irrationality or procedural unfairness in the Board’s decision to allow the withdrawal and dismissal of his appeal back in April 2017 at the Applicant’s own request for his stated reason, and which seems to me a perfectly valid withdrawal that the appeal is no longer extant, as held by the Court of Appeal in Re Das Purnima Rani [2019] HKCA 669 when it explained at [41] that “Once the Board dismisses an appeal against the Director’s refusal of a non-refoulement claim upon a valid withdrawal or abandonment of the appeal by the claimant, in the sense of being the result of a deliberate and informed decision, the appeal is no longer extant and the Board becomes functus officio with no jurisdiction to take any step regarding the appeal. As … s 37V(2)(b) of the Ordinance stipulates that a torture claim rejected by the Director is finally determined when the appeal against it, if one were lodged, was disposed of. Notwithstanding the lack of determination on the merits, the dismissal of an appeal on its withdrawal nevertheless disposed of the appeal. Otherwise, not only would there no finality in the determination of such claims, much room would be created for abuse by claimants desirous of delaying their removal from Hong Kong by making last minute withdrawals and then subsequently applying for reinstatement of the appeals.”.

15.  In the Applicant’s present case, not only did he fail to provide any necessary and relevant details or particulars or evidence to corroborate his bare and vague assertion that his claimed risk of harm from his creditor had re-appeared some 3 years after the withdrawal of his appeal to the Board, and given the nature of his claimed risk that one would safely assume that his family in India must have subsequently satisfied his debts due to his creditor that the Applicant found it safe to return to his home country that caused him to withdraw his appeal to the Board in the first place, and in the absence of any application by the Applicant to the Board re-instate his appeal or any evidence from him that his earlier withdrawal of his appeal in 2017 was indeed invalid and hence a nullity, but which the Applicant has failed to do either, and hence suspiciously an attempt by him to delay his removal from Hong Kong, I am unable to find any merits in his intended application to challenge the Board’s decision.

16.  As for any attempt to instead challenge the Director’s decision, similarly the Applicant has also failed to put forth any proper ground to do so, and that on the factual basis of even his own case that the Director was in my view correct to find that his claimed risk even if real arose from some private monetary dispute between him and his creditor only without any official involvement that state protection will be available to him upon his return to India as well as reasonable internal relocation alternative that it would not be unduly harsh for him to move away from his home village to other parts of the country without any risk of being located by his creditor, a decision also agreed and confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

17.  Accordingly, and as has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

18.  In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in the Director’s consideration and assessment of the Applicant’s non-refoulement claim or the Board’s decision to allow the withdrawal and dismissal of his appeal.

19.  For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his such serious delay, I refuse to extend time and accordingly 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