RAJU SHEIKH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 250/2019

[2023] HKCFI 438

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 250 of 2019

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;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 9 January 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing his appeal against the Director’s Second Decision as described below (the “Board’s Second Decision”).

2.  The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, 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. He entered Hong Kong as a visitor on 30 October 2007 and was permitted to stay until 13 November 2007. On 31 October 2007, he was arrested by the police for the offence of possession of dangerous drugs. He was sentenced to four months’ imprisonment suspended for three years. On 30 January 2008, he lodged a torture claim, which was taken as a non-refoulement claim after the commencement of unified screening mechanism on 3 March 2014. His claim was made on the basis that, if refouled, he would be harmed or killed by a moneylender named Akbar.

5.  In brevity, the applicant’s claimed fear of harm from Akbar originated from a loan he took out from Akbar in September or October 2007 to pay for his visa for Canada. Akbar was said to be a rich and influential gangster. The applicant paid the sum to a travel agent for preparation of the application of his Canadian visa. Nevertheless, the travel agent defrauded him. He was left with nothing and was unable to repay Akbar’s loan. A week later, Akbar sent some men to chase for repayment. They also attacked the applicant. Out of fear, he fled to Hong Kong for protection. Details of his claim are set out at paragraph 14 of the Notice of Decision dated 3 March 2015 by the Director (the “Director’s First Decision”).

The Director’s Decisions

6.  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”).

7.  In passing, it is noted that the applicant filed a written representation on 30 January 2008 and a Torture Claim Form dated 4 February 2014 in support of his torture claim. Nevertheless, despite several attempts inviting the applicant to submit the supplementary claim form and to attend the screening interview, as well as explaining the consequences of his failure to attend the screening interview, the Director did not receive either the supplementary claim form or any explanations from the applicant for his failure to attend the interview. As a result, the Director proceeded to assess the applicant’s claim on the available supporting documents [3]-[12].

8.  By way of the Director’s First Decision, the Director dismissed the applicant’s claim on the grounds of Torture risk, BOR 3 risk and Persecution risk because the level of risk of harm from Akbar was assessed to be low. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments from Akbar indicated an unlikelihood of future risk of harm [21]; (ii) state protection would be available to him [22]; and (iii) internal relocation was a viable alternative [23]. Further, the Director also found that the applicant’s conduct in preparing his non-refoulement claim was inconsistent with someone who genuinely feared a risk of harm if refouled [24].

9.  For reasons set out in the Notice of Further Decision dated 9 November 2016, the Director also dismissed the applicant’s claim on the ground of BOR 2 risk. The Director considered the applicant’s written submission which was received on 27 September 2016 in support of his claim on all applicable grounds [2];[6]. After considering all the information, the Director concluded that the applicant’s right to life would not be violated and thus his claim on BOR 2 risk also failed (the “Director’s Second Decision”).

The Board’s Decisions

10.  On 31 March 2015, the applicant filed his notice of appeal/petition against the Director’s First Decision to the Board. He was around 14 days late. The Board considered the legal principles governing the late filing of notice of appeal/petition. It rejected the applicant’s explanation for the delay [7]-[11] and concluded that there was no special circumstance warranting an exercise of its discretion to allow the late filing [12]. As a result, the Board refused to extend time for the applicant to appeal the Director’s First Decision.

11.  The applicant also appealed the Director’s Second Decision to the Board. On 24 August 2018, the Board conducted an oral hearing for his appeal, during which he answered questions from the Board.

12.  The Board examined his oral evidence with those stated in his written statements. It found that there were several significant inconsistencies in relation to his background and the details of the loan, as well as the alleged assault from Akbar [27]-[40]. In light of these unexplained discrepancies, the Board refused to accept his claim under BOR 2 risk [41]. Even taking the applicant’s evidence at its face value, the Board still rejected his claim because (i) the applicant did not sustain injuries that attained a minimum level of severity [43]; (ii) Akbar and his men had no intention to cause serious harm or even kill the applicant [44]-[47]; (iii) state protection would be available to him [48]-[50]; and (iv) internal relocation was a viable alternative [51]-[54].

13.  For the aforesaid reasons, by way of the Board’s BOR 2 Decision, the Board rejected his claim under BOR 2 risk and dismissed his appeal against the Director’s Second Decision.

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

14.  The applicant has filed Form 86 dated 28 January 2019 for leave to apply for judicial review of the Board’s Second Decision.

15.  In his affirmation in support of his application, the applicant said he cannot go back to his country at this moment and asks for permission to stay here.

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 its 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 Second Decisions should be examined with rigorous examination and anxious scrutiny.

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.  There is no valid reason to challenge the Board’s Second Decision.

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

21.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

22.  I refuse to grant leave for the applicant to apply for judicial review of the Board’s Second Decision. 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