MOHAMMED AZAD AHMED v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1969/2019

[2024] HKCFI 2452

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1969 OF 2019

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JUDGMENT

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Director’s Decision dated 4 March 2019 which was replaced by the Decision dated 14 June 2019 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 did not ask for a hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court, I shall deal with his application on paper.

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, the Director of Immigration is the interested party and relief is sought against the Board’s Decision.

The applicant     

4.  The applicant, aged 46, is a national of India.  He came to Hong Kong as a visitor on 10 September 2007.  He overstayed since 25 September 2007.  On 5 October 2007, he was arrested by police for breach of condition of stay and for possession of dangerous drugs.  He lodged his non-refoulement claim on 27 November 2007.  He committed other offences while he was on bail.  By a letter dated 23 September 2013, he wished to withdraw his claim.  A deportation order was issued against him on 20 November 2013.  He committed further offences whilst he was on bail.  He then requested to re-open his non-refoulement claim.  He is now being detained at the Castle Peak Bay Immigration Centre.  The basis of his claim is that, upon refouled, he will be harmed or killed by Shaik Mocen because he supported the victim of a rape incidident and the Indian police will arrest him because he had been framed of a series of false charges.

5.  According to the applicant, between the period of 1997 and 2007, Shaik Mocen had asked him to make match-fixing in his club for recreation activities for women and he refused.  He believed that one of his friends had also refused Shaik Mocen’s request and he was killed.  At one time, he had assisted a girl, who alleged to have been raped by Shaik Mocen and his friends by taking her to hospital and police station.  Shaik Mocen warned him not to be involved in this case.  He insisted on assisting the rape victim.  Shaik Mocen tried to get triad people to hurt him.  He also file false cases against him with police.  He had been assaulted and taken to a place where he was beaten up until he was unconscious.  When he came round, he found himself in a police station.  He was falsely charged and taken to court.  His family paid a lawyer to get him bail.  He intervened a kidnap case committed by Shaik Mocen’s relative and he was warned and threatened by Shaik Mocen.  He was framed up with false charges of bombing, shooting, murder and robbery.  He felt it unsafe to remain in India, therefore he left his country for Hong Kong in September 2007.  In Hong Kong, he was assaulted by Mocen’s people.  His family home in India was also vandalized by Mocen.  Details of his story are set out in paragraph 6 of the Director’s Notice of Decision dated 4 March 2019 (“the Director’s Decision”).

6.  Details of his claim are set out at paragraph 6 of the Notice of Decision dated 30 October 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

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 dismissed the applicant’s claim.  Briefly stated, the Director finds that there is no substantial ground to believe he will face a future risk of serious harm if he returns to India [16]; state protection will be available to him [18]; and internal relocation is a viable option, if he returns to India [19].

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board.  On 30 May 2019, the Board conducted an oral hearing for his appeal.

10.  The Board had asked him questions at the hearing.  Having considered the evidence, the Board did not accept that Shaik Mocen had such power to influence the police to mistreat him or lay false charges against him.  The Board further did not accept that the applicant was a credible witness and it rejected all of his claims of ill-treatment at the hands of Shaik Mocen.  See paragraphs 63 to 76 of the Board’s Decision.

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

11.  The applicant has filed Form 86 dated 12 July 2019 for leave to apply for judicial review of the Board’s Decision.

12.  In his affidavit in support of his application, the applicant says his life will be in danger if he returns to India.  He did not raise any specific ground to challenge the Board’s Decision.

DISCUSSION

13.  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).

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

15.  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.”

16.  The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded.  There is no valid ground from the applicant to challenge the Board’s Decision.

17.  There is no reason that the Court should interfere with the Board’s finding of the facts.

18.  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 grant leave to the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss his application.