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HCAL 1807/2019
[2024] HKCFI 2050
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1807 of 2019
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BETWEEN
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Ahmed Iqubal |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge K.W. Lung:
Leave to apply for Judicial Review be dismissed.
Observations for the Applicant:
THE APPLICATION
1. The applicant applies for leave to apply for judicial review of the Decisions of the Director of Immigration Department (“the Director”) respectively dated 22 April 2015 and 24 April 2017 (“the Director’s Decisions”) and Decision dated 23 January 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).
2. The applicant’s application in relation to the Director’s Decision fail in limine as the Decision dated 22 April 2015 had been appealed to the Board[1] and the Decision 24 April 2017 should have gone through the procedure of appealing to the Board. The Court will only consider his application in relation to the Board’s Decision.
3. The applicant asked for a hearing. He appeared before the Court on 31 July 2024.
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 is a national of India. Between January 1998 and December 2007, the applicant entered Hong Kong under two different names: Iqubal Ahmad and Ekbal Ahmad. On 4 March 2008, he was arrested for overstaying. He lodged a non-refoulment claim on the basis that, if refouled, he would be harmed by Sanjay and his gang members because of a private dispute with them in 1996 or 1997.
6. According to the applicant, the dispute with Sanjay and his associates arose in May 2014 when he paid a visit to his brothers in Kolkata. One of his brothers was in monetary dispute with Sanjay and his associates, who attempted to extort money from his brother. He intervened and told his brother not to pay money to them. Sanjay was holding a revolver. He snatched the revolver from Sanjay and hit him with it, causing bleeding to Sanjay’s head. He was not seriously injured and he did not need medical treatment. His friend Mehtab advised him to leave India for his own safety. He came to Hong Kong for one month. He then heard a police friend that it was safe for him to return to India. He returned to India and started a garment business there. However, his brothers told him and Sanjay and his gangsters were still looking for him. He also learned that the gangsters hit his family members. In 2007, he came to Hong Kong and he never returned to India since then. He kept contact with his family and was told that the gangsters were still looking for him. He said the gangsters are attached to the Trinamool Congress Party, the current ruling party of West Bengal.
7. Details of his claim are set out at paragraphs 26-39 of the Board’s 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 the Director’s Decision, the Director dismissed the applicant’s claim on Torture risk, BOR 3 risk and Persecution risk. In elaboration, the Director found that (i) the low intensity and low frequency of alleged ill-treatment in the past was indicative of a small future risk upon his return to India [14]. (ii) Sanjay and his gang members were not so powerful and influential as he alleged [15]; (iii) state protection would be available to him [16]; and (iv) internal relocation were available to him [17]. The Director further found that the applicant’s evidence was not credible [18].
10. By the Director’s Notice of Further Decision dated 24 April 2017 (“the Director’s Further Decision”), the Director considered the applicant’s claim on BOR 2 risk and found that he failed to establish any real risk of any violation of BOR 2 risk upon his return to India.
The Board’s Decision
11. The applicant appealed the Director’s Decision to the Board. He did not appeal the Director’s Further Decision to the Board. On 22 August 2016, the Board conducted an oral hearing for his appeal, during which he was assisted by an interpreter [14].
12. Having considered the evidence, the Board came to the conclusion:
“44. … I find that the Petitioner has not made out a case in respect of the aforesaid 3 grounds for the reasons hereinafter appearing:
(b) … There is no suggestion it concerned any convention reason.
(c) … he never came across the gangsters again. His ex-wife and four children remain in Kolkata and they have had no problems.
(d) … I considered the COI material on this issue. … The COI does refer to recent and ongoing efforts to put in place strategies and programme to bring about improvement. However, all nationals are subject to the same imperfect system of policing and general governance…
50. The Petitioner is 53, able bodied, and has had 10 years’ education. He has worked as a farmer and for several years in the garment business. I would have found that there was no circumstances that would make it unreasonable for him to relocate elsewhere in India.”
13. The Board then dismissed the applicant’s claim on the applicable risks.
Application for leave to apply for judicial review of the Board’s Decision
14. The applicant has filed Form 86 on 28 June 2019 for leave to apply for judicial review of the Board’s Decision.
15. The applicant has attached a statement of grounds to Form 86. I shall summarize them as below.
(1) The Board’s decision is unreasonable as it did not take heed of BOR 2 risk.
(2) The Board did not give proper weight to state acquiescence as he was tortured by the state.
(3) It is unfair and unreasonable for the Board to place too much attention to the country of origin information (“COI”) without paying attention to his personal situation.
(4) It is improper and unreasonable for the Board not to consider his argument and required him to answer questions he was unable to answer.
(5) The Board’s decision is irrational.
DISCUSSION
16. 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).
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 asked for leave to withdraw his application as his problems have been solved and he wants to return to his country.
18. Since I have considered his case in merit, I will set out the reasons that even if he proceeds with his application, he will fail.
19. 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.”
20. The Board, for the reasons given above, found that the applicant’s claimed risks were unsustainable.
21. Those grounds under paragraph 15 do not assist him. Ground (1) and Ground (2) are untrue; Ground (3) to Ground (5) are his bare assertions without any evidence in support[2].
22. There is no reason that the Court should interfere with the Board’s finding of the facts.
23. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.
CONCLUSION
24. Since the applicant applied to withdraw his application before the Court. I had explained the consequences of his application to him and he confirmed his application for withdrawal of this application, I shall accede to his request and dismiss this application.
Dated the 13th day of August 2024
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(M.O. WONG)(Ms)
for Registrar, High Court
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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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 13/8/2024
Ahmed Iqubal
Applicant’s ref. no:
Nil |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 13/8/2024
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 1474/15/5/6/IN347
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1136/08 and RBCZ-9000974-17 (formerly RBCZ/734/08)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Re: Moshsin Ali [2018] HKCA 549, Hon Lam VP and McWalters JA, 24 August 2018
“45. … the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. … the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”
[2] The Court of Appeal in Salim Ahmed alias MD Salim [2020] HKCA 244 held:
“20. … … general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case: Re Mizan Sikder [2019] HKCA 20 and Ibrahim v Simon Russell [2019] HKCA 1327.” See also Re Haider Khalil [2021] HKCA 223 [16].”
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