MOHAMMED IRSHAD v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1713/2018

[2020] HKCFI 1206

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1713 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 the applicant’s application for leave to apply for judicial review of the Decision dated 9 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant is not legally represented and he did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court, by letter, invited the applicant to appear before it in order to explain the above to them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant attended the hearing on 21 January 2020.

3.  Leave was granted to the applicant to amend Form 86 by deleting the Board and replacing it by the Director of Immigration (“the Director”) as interested party.

The applicant

4.  The applicant is an Indian national. He came to Hong Kong on 31 July 2016 as a visitor and was permitted to stay until 14 August 2016. He overstayed and surrendered himself to the Immigration Department the next day. He lodged a non-refoulement claim on 17 August 2016 by way of written representation.

5.  He claimed that if refouled, he would be harmed or even killed by his wife’s father and brother.

6.  He is Muslim and his wife, Fathima was Hindu. They got married despite they knew that his wife’s family would not agree to their marriage. They registered their marriage and lived somewhere outside their families. His wife’s father and brother were furious about this marriage. They reported the matter to police alleging that the applicant had kidnapped Fathima. They also called him every day, causing disturbance to his daily life. They told the applicant to bring Fathima back home or they would kill him. He refused to do so. The brother got some people to trace him. He was attacked by them with wooden sticks on the street whilst he was on his way to work. He was injured and had to receive medical treatment. He was attacked twice. One day, he returned home and found Fathima dead on the floor. He reported the matter to police. But the police did not take action. He buried her body. Her brother admitted having committed the murder and warned him that he would be the next victim. Then he found being stalked. He moved to his friend’s home to live. His friend told him that the brother and his men were still looking for him. He decided to leave India for Hong Kong.

The Director’s Decision

7.  The Director considered his application in relation to the following risks:

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

b.     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”);

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”).

8.  By Notice of Decision dated 18 September 2017, the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that there were no substantial grounds for believing that he would be harmed or killed by his wife’s father and brother upon his return to India [11 & 13]; that state protection was available to him [14] and internal relocation was an option open to him [17]. His claim under BOR2 risk was not established.

The Board’s Decision

9.  The applicant appealed to the Board against the Director’s Decision. He attended a hearing before the Adjudicator on 15 May 2018.

10.  By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decision.

11.  The Board considered the applicant’s evidence and found that the applicant’s claims were not truthful claims. It found that the applicant was an untruthful witness and that he had fabricated his claims in an attempt to extend his stay in Hong Kong [92]. It rejected the evidence in support of his application: that he was married to Fathima, that he was beaten up by her brother; that he received threat calls from her father and her brother; that Fathima was murdered [129] See paragraphs 93-133.

Application for leave to apply for judicial review

12.  The applicant filed Form 86 on 22 August 2018 for leave to apply for judicial review of the Board’s Decision.

13.  In his affirmation in support of his application, he did not set out the grounds in support of his application. He did not say what error the Board had committed in coming to its decision.

DISCUSSION

14.  The applicant appeared before me. He confirmed that he was treated fairly when he appeared before the immigration officer and the Adjudicator of the Board. The duty lawyer had explained the Director’s Decision to him and the interpreter of the Board had explained the Board’s Decision to him. He did not understand why the Adjudicator did not believe his evidence.

15.  In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that 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 and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

16.  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.

17.  The applicant is unable to show that he has reasonable prospect of success for his intended judicial review.

CONCLUSION

18.  I therefore refuse to grant leave to the applicant to apply for 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