AZHARUDDIN SK v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 1322/2018

[2020] HKCFI 165

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1322 of 2018

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  This is an application taken out by the applicant pursuant to Order 53, rule 3 (2) of the Rules of the High Court (“RHC”) for judicial review of the decisions of the Director of Immigration (“the Director”) and the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”).

2.  The applicant requested a hearing.  The hearing was fixed at 10:00 am on 25 January 2019.  However, the applicant was absent on that day.

3.  By an Order dated 25 January 2019, this Court dismissed his application for want of prosecution.

4.  The applicant failed to take out an application for leave to appeal against the said Order to the Court of Appeal within time.  Pursuant to Order 59, rule 2B(1) of the RHC, the applicant filed a summons on 16 May 2019 to seek leave to appeal against the said Order to the Court of Appeal out of time.

5.  On 3 June 2019, this Court gave directions that a hearing be fixed at 10:00 am on 4 July 2019.

6.  At the hearing, he explained that he was convicted of the offence relating to dangerous drugs and was sentenced to one month’s imprisonment on 28 December 2018.

7.  I am satisfied with his explanation for his absence on 25 January 2019.

8.  Under Order 32, rule 6 of the RHC, this Court has the jurisdiction to set aside an order made ex parte.  Pursuant to Order 1A, rule 1 and Order 1B, rule 1(2)(l) of the RHC, I shall now treat the applicant’s application as an application to set aside the order which I made on 25 January 2019 dismissing his application.  The said order is now set aside.

9.  I shall now consider the applicant’s application for leave to apply for judicial review of the Director’s Decision and the Board’s Decision.

The applicant

10.  The applicant is an Indian national. He came to Hong Kong on 14 January 2015 as a visitor. He was permitted to stay until 28 January 2015. He overstayed. On 3 February 2015, he was arrested by police and referred to the Immigration Department. He lodged a non-refoulement claim on 5 February 2015.

11.  The applicant claimed that if refouled, he would be ill-treated or even killed by his creditor, who belonged to All Indian Tinamool Congress (“TMC”) because he failed to repay his debt.

12.  His creditor is called Arjit, who was his previous employer in the garment selling business. He had borrowed 400,000 rupees from Arjit to set up his own business. He agreed to repay the loan within two months. However, he was unable to repay within the agreed period. One night at about 2100 hour to 2200 hour, Arjit came with four or five people for repayment. He could not repay. They attacked him with bare-hand and stick. He was injured on his back, shoulder, neck and legs. He went to a nearby clinic to receive medication. Two weeks later, he met Arjit on the street. Arjit and his people attacked him. They slapped his face and punched him on the right side of his neck. A month later, Arjit called on the phone and threatened him that if he still did not repay the loan, he would kill him. He was scared. Ten days later, Arjit came to his home with ten odd people. They attacked him all over his body causing scratches on his back, cut and bleeding on his right middle toe and bleeding on his left calf. His family feared that he would not be safe in India and arrangements were made for him to come to Hong Kong.

13.  The Director considered his application by reference 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”);

c.     risk of torture under Part VIIC of the Immigration Ordinance, Cap 115, (“the Ordinance”) (“Torture risk”); and

d.     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 under RC”).

The Director’s Decision

14.  By Notice of Decision dated 31 October 2017 (“the Director’s Decision”), the Director rejected the applicant’s non-refoulement application for the reason that the applicant’s claim was not substantiated.

Appeal to the Board

15.  The applicant appealed against the Director’s Decision to the Board and attended a hearing on 22 June 2018. He was legally represented at the hearing.

Application for leave to apply for judicial review

16.  Pursuant to Order 53, rule 3(2) of RHC, the applicant applied for leave to apply for judicial review of the Director’s Decision and the Board’s Decision.  He relied on the grounds annexed with Form 86 as set out below.

(1)     the Director had failed to give proper weight to state acquiescence in his case as there was collusion between the police and the high-up political circles;

(2)     the Director was unfair because he selected the Country of Origin Information (“COI”) in accordance with his pre-conceived conclusion and he did not give proper weight to the information in support of his case;

(3)     the Director had failed to consider that corruption is serious in India and the administration of the government is incompetent;

(4)     the Director had failed to maintain high standard of fairness;

(5)     the Adjudicator had not made sufficient enquiry before making decision;

(6)     it was unreasonable for the Adjudicator to ask the applicant to adduce evidence to prove his case because the applicant was being detained; and

(7)     the applicant was not given sufficient chance to adduce the evidence.

DISCUSSION

The Direction’s Decision

17.  In my view, the applicant is not entitled to apply for judicial review of the Director’s Decisions without exceptional circumstances.  In Haider Zeeshan v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office and The Director of Immigration HCAL 806/2018, I had held that an applicant, without exceptional circumstances, is not entitled to apply for judicial review of the Director’s Decision because the Board has been established by legislation to deal with appeals against the Director’s Decisions and this Board has wider power than this Court to make investigations in the matter.  His appeal against the Director’s Decision had been heard and the Board had made its Decision.

18.  The applicant has not set out any exceptional circumstances.

19.  Also, in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, the Court of Appeal held:

“… …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.” [45]

20.  His application for leave simply fails in limine. 

21.  For the reasons above, I dismiss the applicant’s application for leave to apply for judicial review of the Director’s Decision.

The Board’s Decision

22.  The applicant appeared before me and he confirmed that he had not given evidence before the Board. But he considered that the Adjudicator was fair and he had no complaint against her.

23.  In the Board’s Decision, the Adjudicator has recorded that she had advised the applicant to be cooperative with her and she would like him to give evidence to clarify some issues which she had concern. He was legally represented and his legal advisor had also taken time to give him advice. See paragraph 7. Despite legal advice having been obtained, the applicant maintained his stance of not giving evidence. In the circumstances, the Board considered his evidence which he had given to the Director at the screening stage. She found that his evidence was inconsistent and difficult to accept. The Board finally found that it was not satisfied that the appellant had established any of the facts he had asserted and it was not satisfied that there was a real risk that he would face any of the proscribed forms of harm if he returned to India [63].

24.  The Board had drawn adverse inference from the fact that the applicant had refused to give evidence [62]. In my view, the Board was entitled to do so. In Li Defan & Another v HKSAR  (2001) 5 HKCFAR 320 at §27, in which Lord Hoffmann NPJ cited the High Court of Australia: Weissensteiner v. The Queen (1993) 178 CLR 217:

“… it has never really been doubted that when a party to litigation fails to accept an opportunity to place before the court evidence of facts within his or her knowledge which, if they exist at all, would explain or contradict the evidence against that party, the court may more readily accept that evidence. It is not just because uncontradicted evidence is easier or safer to accept than contradicted evidence. That is almost a truism. It is because doubts about the reliability of witnesses or about the inferences to be drawn from the evidence may be more readily discounted in the absence of contradictory evidence from a party who might be expected to give or call it….”

25.  The Court of Appeal had held in Ali Haider CACV8/2018, [2018] HKCA 222 at §13:

“Evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision makers….”

26.  At §14 of the same judgment, the Court of Appeal further said:

“Determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.”

27.  It is quite obvious that the Board rejected the applicant’s factual evidence. As such, his application has no factual basis in support of his claim.

28.  Those grounds above have no relevance to the reasons for the Board’s refusal of his appeal. It is simple not permissible for him to say that the Adjudicator did not allow him time to arrange for relevant evidence to be available since he did not identify the evidence and he elected not to give evidence at the hearing himself.

CONCLUSION

29.  I find that the applicant has failed to show that his application for the intended judicial review has any real prospect of success.  I refuse to give him leave to apply for the 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