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HCAL 678/2019
[2022] HKCFI 2405
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 678 of 2019
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BETWEEN
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Mohammed Mukhtar |
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 K.W. Lung:
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 25 February 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).
2. The applicant requested an oral hearing. A hearing was fixed for him. However, the applicant was absent without prior notice to the Court. The application will be dealt with on paper.
The applicant
3. The applicant is a national of India. He entered Hong Kong on 16 January 2017 as a visitor and was permitted to stay until 30 January 2017. He did not depart and had overstayed since 31 January 2017. On 1 February 2017, he surrendered to the Immigration Department. On 14 March 2017, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by Raju Singh (alias Sonu).
4. According to the applicant, he ran a garments and electronics business from 2000 to 2016. All the garments he sourced were from Raju, who was well-connected to police and politicians. In October 2015, in order to expand his business, the applicant put his bank account passbook and the deed for his shop as securities for more garments from Raju. His business went smoothly and he paid back Raju within the time limit. However, after around two months, he was informed by his bank that he failed to repay a loan, which was taken out by Raju with the security documents from the applicant as pledges. He reported to the police for the fraudulent act but the police refused to assist.
5. In 2017, during his visit to Raju’s office, the applicant was kidnapped and assaulted. He also witnessed the murder of two boys whose family could not afford the ransoms. He was then taken to the jungle and kept for two days, during which he was threatened by the kidnappers to drop the complaints and not to report the murder case against Raju. Out of fear, after his release, the applicant eventually fled to Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 25 June 2018 by the Director (the “Director’s Decision”).
The Director’s Decision
6. 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”).
7. By way of the Director’s Decision, the Director dismissed his claim for there was no real or substantial risk of harm upon his refoulement. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [12]; (ii) there was no indication that Raju had the real intention to harm or kill him [13]; (iii) state protection would be available to him [14]-[20]; and (iv) internal relocation was a viable alternative [21]-[25].
The Board’s Decision
8. The applicant appealed the Director’s Decision to the Board. On 31 October 2018, the Board held an oral hearing for his appeal.
9. The Board considered thoroughly the applicant’s claim. It cast doubt on serval material aspects. For example, if Raju was connected with the police, why would Raju kidnap the applicant so that he would not reveal the murder to the police [33]. It noted that the applicant also provided different versions about his kidnap [36]. It also noted that Raju and the followers did not kill the applicant [37]-[39]. Meanwhile, it observed that the applicant gave inconsistent accounts about his experience in the police station [40]-[41]. Based on his evidence, the Board also found that his assertion that Raju’s men were looking for him was speculative [46] and that Rju’s threat, if any, was localized [52]-[53].
10. In summary, the Board found that the applicant’s versions of events were illogical and unbelievable [58]-[61]. As a result, the Board rejected the applicant’s claim and dismissed his appeal.
Application for leave to apply for judicial review
11. The applicant filed Form 86 dated 11 March 2019 for leave to apply for judicial review of the Board’s Decision.
12. In his statement attached to Form 86, he set out the grounds in support of his application, which I shall summarize below.
(1) The Board had unlawfully fettered its discretion by refusing his appeal.
(2) The adjudicator acted in a procedurally unfair manner in dealing with his appeal: hearing bundle was given to him some 6 days before the hearing and the contents are mostly in English; he was unable to afford an interpreter and he was confused at the hearing.
(3) The respondent’s decisions to refuse his appeal were unreasonable or irrational in the public law sense or are/a result of procedural errors or unfairness: the applicant having answered all the Board’s question, yet the Board disbelieved his evidence, which is unfair.
(4) The Board had relied upon the source of news which is not officially recognized or it is simply hearsay, resulting in its speculation on his risk of returning to his country.
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 its 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 Decisions 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 grounds in paragraph 12 above do not assist his application. Ground (1) is only his bare assertion. Ground (2) fails too as there was no application to the Board for adjournment for not having enough time to prepare his hearing. Lack of language assistance is not a valid ground to challenge the Board’s Decision[1] and there is no evidence that he was confused at the hearing. He also alleged that he had answered all the questions put to him by the Board. Ground (3) fails as the Board is entitled to assess his evidence and ground (4) is only his opinion without evidence in support.
17. There is nothing to show that the Board had committed any error in its application of the law to his case or in coming to its conclusions on the facts of the case.
18. The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.
CONCLUSION
19. I therefore refuse to grant leave to the applicant to apply for leave for judicial review. Accordingly, I dismiss his application.
Dated the 17th day of August 2022
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(M.O. WONG)(Ms)
for Registrar, High Court
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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 the Applicant’s 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 17 August 2022
Mohammed Mukhtar
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 17 August 2022
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 12350/18/7/100/IN2468
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 1720/18 (Formerly RBCZ 10607/17)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] The Court of Appeal in Re Khan MD Omar [2019] HKCA 803, 19 July 2019 at §18 held:
“Interpreter services were provided at hearings at every stage. Such services were also available at the time when the applicant was assisted by Duty Lawyer. We do not accept that the alleged lack of language assistance at other time would render the process unfair in the present case.”
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