MOHAMMAD NASIM AKHTAR v. TORTURE CLAIMS APPEAL BOARD /NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2725/2018

[2021] HKCFI 1514

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2725 of 2018

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.  This is the applicant’s application for leave to apply for judicial review of the Decision dated 26 November 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“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 (“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 Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.

The applicant

4.  The applicant is a citizen of India.  He came to Hong Kong as a visitor on 9 October 2006.  He overstayed and was arrested by police.  He made a torture claim under the Convention on 24 March 2009.  His application was rejected on 26 October 2012.  On 4 January 2013, he lodged his non-refoulement claim with the Immigration Department. 

5.  He claimed that if refouled, he would be harmed or killed by his two creditors, Mr Rafiq and Mr Sattar.  He had borrowed money from them for his business, which failed and he was unable to repay them.  The creditors had come to his home to demand payment.  The creditors had threatened that if he is unable to repay the loans, he will be killed.  They also harassed his wife and his son in India.  Details of his story are set out in paragraph 9 of the Director’s Decision described below.

The Director’s Decision

6.  He had made a torture claim with the Immigration Department and was rejected.  The Director considered his application in relation to the following risks:

a. Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

b. 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

c. 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.  By Notice of Decision dated 26 February 2018 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.  The Director found that it did not accept that ill-treatment, whether physical or mental, if any, inflicted upon him attained a minimum level of severity [14]; that state protection was available to him [18] and internal relocation was an option open to him [22].

The Board’s Decision

8.  The applicant appealed against the Director’s Decision.  He attended the hearing before the Board on 14 September 2018.

9.  By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision.  The Board, having considered the applicant’s evidence, accepted his alledged facts as the basis of his claim.  [38-47] However, the Board found that state protection would be available to the applicant and that internal relocation would be an option open to him, therefore he was unable to show that he had a well-founded fear of persecution if he returned to India [61-69]; and that there was no evidence that his case should be covered under BOR 2 risk [70-71].

Application for leave to apply for judicial review

10.  The applicant filed Form 86 on 3 December 2018 for leave to apply for judicial review of the Board’s Decision.

11.  In his affirmation in support of his application, he said that he could not go back to his country at this moment because his life would not be safe.

DISCUSSION

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

13.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13.… …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.”

14.  His ground in support of this application does not assist his application.

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

16.  There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.

CONCLUSION

17.  I therefore refuse to grant leave for the applicant to apply for his intended judicial review.  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