HUSSAIN JAVED v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following;

1.  Form 86 be amended, naming only the Director of Immigration as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 7 December 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision by the Torture Claims Appeal Board (the “TCAB”) dated 19 November 2020 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 13 November 2018.  It is noteworthy that the Applicant had previously lodged a torture claim which was dismissed in 2013 (and there was no appeal).  The TCAB Decision was therefore not concerned with torture risk.

2.  I amend the Form 86 on my own motion to name only the DOI as the putative interested party.

3.  The Applicant requested for a hearing of this application and he attended the same.

Background

4.  The Applicant is a national of India.  He seeks non-refoulement protection on the basis that he would be harmed by 2 moneylenders because he was unable to repay the loans.  The moneylenders were well-connected and influential.  There were incidents of assault against the Applicant and death threats were made.  The Applicant’s personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be viewed through a hyperlink[1].  I shall therefore not repeat them.

Discussion

5.  The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23].  It is sufficient to state my observations after considering the TCAB Decision and the materials adduced by the Applicant.

6.  I remind myself that in a judicial review, this court does not provide a further avenue of appeal.  Though in non-refoulement cases an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers.  A finding of fact is exclusively within the realm of the TCAB, and this 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 TCAB: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].  There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

7.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

8.  The Applicant did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision in the Form 86.  Rather, the Applicant’s grounds are set out in an exhibit to his affirmation in support (spanning 4 pages in total after the Applicant set out the reliefs sought).  I have carefully all the grounds and they are in summary as follows:

(1)   The TCAB Decision was unreasonable, irrational or a result of procedural unfairness;

(2)   The TCAB unlawfully fettered his discretion;

(3)   The TCAB failed to meet the greater care and duty owed to a self-represented claimant;

(4)   The TCAB failed to interact with facts when considering the risk under Article 2 of the Hong Kong Bill of Rights;

(5)   The TCAB relied on sources of news that was unofficial, outdated or merely hearsay;

(6)   The Applicant remained in danger in his home country;

(7)   The Applicant, being a Muslim, would receive unfair treatment and be persecuted in India by the government (which consists of “Hindu extremists”).

9.  As can be seen from the TCAB Decision, the TCAB took into account all the evidence available [1-7, 16-37] and found that on the basis of the same, applying also the correct legal principles in respect of all the remaining applicable grounds (i.e. excluding torture risk) [8-15] and properly considering Country of Origin information [43-44], the Applicant’s allegations were insufficient to make out any of the applicable grounds [47-49].  The TCAB specifically held that the ill-treatments allegedly sustained by the Applicant did not meet a minimum level of severity, and the creditors never intended to kill the Applicant [39-40, 48].  There was also no evidence to show that the creditors were as powerful and influential as the Applicant claimed [41]. There were conclusions that the TCAB was fully entitled to come to.

10.  The TCAB also concluded that state protection and internal relocation were available on the evidence [44, 45-46, 47, 49].

11.  For these reasons, I am satisfied that the TCAB properly and carefully considered the Applicant’s claims and gave adequate reasons for its decision. The grounds advanced by the Applicant are no more than bare assertions and are wholly unsubstantiated, especially in view of the TCAB’s rejection of the underlying factual premise of the Applicant’s case.

12.  At the hearing the Applicant also informed me that he had been in Hong Kong for 18 years, that he was married to a Filipino wife (who was also a torture claimant), and that he had no life and family in India.  These matters however have nothing to do with the issues I need to deal with, namely the correctness (in the public law sense) of the TCAB Decision.

13.  All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.  The Applicant’s intended challenge to the TCAB Decision is therefore not reasonably arguable, and accordingly the application for leave to apply for judicial review is dismissed.

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