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HCAL739/2017
[2018] HKCFI 1289
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 739 of 2017
BETWEEN
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Sk Asgar Ali |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office |
Putative Respondent |
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and |
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Director of Immigration |
Putative
Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge Woodcock:
Leave to apply for Judicial Review refused.
Observations for the Applicant (Order by Deputy High Court Judge Woodcock):
1. The applicant is an Indian national who arrived in Hong Kong with his wife on 16 June 2015 and both were permitted to remain until 30 June 2015 but did not leave as required. They both overstayed and then surrendered to the Immigration Department on 3 July 2015. They both lodged non-refoulement protection claims which were rejected by the Director of Immigration (“the Director”) on 23 January 2017.
2. They both lodged appeals/petitions to the Torture Claims Appeal Board (“TCAB”) but before the hearing the applicant’s wife withdrew her appeal and went home to India. The applicant pursued his appeal/petition but it was rejected on 29 September 2017. He filed a notice of application for leave to apply for judicial review on 9 October 2017 and requested an oral hearing. That hearing was set down for 29 January 2018 and the applicant appeared in person having had his legal aid application refused.
3. The basis of their claims is important because it gives a full picture of their case even though the applicant’s wife has abandoned her appeal and returned to India leaving her husband here. Both the Director and the adjudicator of the TCAB give full details of their evidence and case in their decisions therefore, there is no need to repeat it here.
4. In short, the applicants met, had a relationship in secret before marrying only to be both rejected by their respective families. The applicant’s wife then became the subject of an infatuation by another man who wanted her to divorce the applicant and marry him. He was most persistent and harassed her constantly; even when they moved far away, apparently he managed to find them. The applicant originally had a successful business but because his stock was stolen by his wife’s stalker who was intent on ruining him, he had to borrow money from a loan shark which he was unable to pay. It forced him to close his shop and business in April 2015, not long before they travelled to Hong Kong. The loan shark is still after him to repay that loan.
5. The adjudicator, as did the Director, analysed the applicant’s claim under all applicable grounds;
(a) risk of torture as defined in part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, (“torture risk”);
(b) risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of Hong Kong Bill of Rights Ordinance Cap 383 and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”);
(c) risk of persecution by reference to the non-refoulement principal under Articles 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“persecution risk”); and
(d) risk of a violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 6 ICCPR (“BOR 2 risk”).
6. The adjudicator treated the appeal as a rehearing. He was very aware of the fact that although the applicant’s wife had abandoned her appeal that had no effect on the applicant’s appeal which was to be considered independently. The adjudicator correctly set out the law and key legal principles for the four applicable grounds. He set out both applicants’ evidence in detail as well as his consideration and analysis of it. The adjudicator had his doubts about the credibility of the applicant’s claim and gave the applicant an opportunity to give explanations and further evidence.
7. The adjudicator set out in detail why he did not believe the applicant was a genuine claimant. He set out why he found the applicant was not a witness of truth and why his case was implausible. He did not believe that the applicant was ever married to the other applicant, he did not believe that there was a suitor or stalker who harassed or threatened the applicants or engaged in a physical fight with the husband. He did not believe that the applicant made any police reports, the stalker stole his stock from his shop or that the applicant took out a loan with a loan shark to make further purchases for his business. The adjudicator essentially rejected the applicant’s evidence in its entirety.
8. He found there to be no foreseeable, real and personal risk of being subjected to torture or a real chance of a reasonable likelihood of the applicant being persecuted if he returned home. The adjudicator found the applicant was unsuccessful in showing he was at risk of torture, unable to invoke the protection of BOR 2 or BOR 3 and could not prove a persecution risk for a Refugee Convention reason for the purposes of a non-refoulement protection claim. The adjudicator confirmed the decision of the Director.
Leave to apply for judicial review
9. The applicant has listed both the TCAB and the Director of Immigration as proposed respondents but then only seeks relief against the TCAB’s decision. I take the view that the proper approach should be that this application for leave to apply for judicial review is sought against the decision of the TCAB only. The applicant has already utilised the channel of appealing the Director’s decision to the TCAB. The TCAB treated the appeal/petition as a de novo hearing or rehearing. The applicant would have covered all mistakes he says the Director made in his appeal to the TCAB. Anyway, the TCAB would have looked at it to ensure no errors as it treated his appeal/petition as a rehearing. To seek to judicial review both decisions is not the right course of action to take; there is no room for a judicial review of the decision of the Director as well unless in very specific circumstances. Those circumstances do not arise here.
10. The supporting affirmation essentially lists the following as grounds for seeking leave:
(1) a failure to consider the concept of extended state acquiescence;
(2) a failure to consider relevant and objective Country of Origin information and give reasons why that information supported the adjudicator’s decision; and
(3) the adjudicator cherry picked at that information.
11. There were no particulars to support any of the grounds. During the oral hearing that the applicant had requested, he had nothing to add to his affirmation or application except that his wife who had returned to India told him that loan sharks were still coming to the applicant’s home threatening his life because he had failed to repay his debt.
12. The adjudicator did not consider Country of Origin information nor make a finding on State protection or State acquiescence. In light of his finding that the applicant was not a genuine claimant and faced no risk if refouled, there was no need for him to conduct that exercise. There was no merit in the above grounds.
13. I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application. I find the adjudicator’s decision to be without fault. He has meticulously analysed the applicant’s evidence and given full reasons for his finding that the applicant is not a genuine claimant. I will not interfere with his decision. I find no substance in the grounds of this application; they are not particularised or substantiated. I do not find any ground that shows there was an error of law by the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable. In fact, the same applies to the decision of the Director.
14. In my judgement, the applicant’s claim is not reasonably arguable. There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.
Dated 19th day of June 2018
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(Alan Ngan)
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or his solicitors must: |
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted(Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). |
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Sent to the Applicant on 19/6/2018
Sk Asgar Ali
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 19/6/2018
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 6066/17/2/65/IN1235
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 320/16 (formerly RBCZ 10015/16)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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