SAYEED IBRAHIM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 2967/2018

[2020] HKCFI 818

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2967 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.  The applicant was absent for this hearing. There being no evidence to show that the Notice of Hearing was not served on him, his absence without prior notice or explanation demonstrates that he has waived his right of being heard for his application. I shall proceed to consider his application on the papers only.

The applicant

2.  The Applicant is an Indian national. He came to Hong Kong on 25 March 2008 and was allowed to stayed as a visitor until 8 April 2008. He overstayed and was arrested by police on 4 April 2009. On 8 April 2009, he lodged a torture claim under Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which is similar to section 37U interpretation of Part VIIC of the Immigration Ordinance, Cap. 151 (“the Ordinance”). His application was rejected by the Director of Immigration (“the Director”) on 5 February 2014. He appealed to the Torture Claims Appeal Board (“the Board”) on 17 February 2014. The Board rejected his appeal on 26 May 2014.

3.  He claimed that if refouled, he would be killed by his money lender due to his loan default.

4.  It was a simple story of borrowing money for business in India by the applicant from his friend called Mohammad Manoj and not able to repay. The moneylender pressed for repayment of the loan. In March 2007, Manoj called 8 or 9 people to attack him. He was injured. Hs mouth was bleeding and there were scratches on his face. It took 10-15 days for recovery. He had moved to some other places to avoid Manoj. In 2008, he came across Manoj on his way to his in-laws’ house. Manoj slapped him on his face and threaten to kill him if he did not repay the loan. He felt unsafe and decided to come to Hong Kong.

The Director’s Decision

5.  As his torture claim had been considered and 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”).

6.  By Notice of Decision dated 31 May 2018, the Director refused his claim for the reason that his claim was not substantiated.

The Board’s Decision

7.  The applicant appealed to the Board against the Director’s Decisions and he attended a hearing before the Adjudicator on 16 October 2018.

8.  By Decision dated 13 December 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.

9.  The Board considered the applicant’s evidence. Despite various inconsistencies, implausibility and unsupported allegations [57], it accepted that the applicant had borrowed money from Manoj, who had slapped him on his face for pressing him to repay the loan. It also accepted that Manoj had threatened him. But there was no evidence that Manoj would carry his threats into effect. See paragraphs 59 & 60. It came to the conclusions below.

a.     There was no evidence in support of risk of torture or BOR 3 risk [74], BOR 2 risk [69] or Persecution risk [66].

b.     State protection would be available to him if he returned to India [64].

c.     Internal relocation was an option to him [84].

Application for leave to apply for judicial review

10.  He filed Form 86 dated 24 December 2018 for leave to apply for judicial review of the Board’s Decision.

11.  In his affirmation in support of his application, he relied upon the grounds below.

1.     The Board did not look at his case afresh, but simply dismissed his case on the nature of the case.

2.     No language assistance was provided to him – procedurally unfair.

3.     No legal assistance was provided for him for his appeal or for this application.

4.     The Board did not give any proper explanation as to why the Board was not satisfied that he would face any harm if he returned to India.

5.     In respect of internal relocation, the Board had not considered his personal difficulty in the cities it proposed he could relocate.

6.     High standard of fairness was not met for his case.

DISCUSSION

The Director’s Decision

12.  The Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap. 115 in relation to the powers of the Director and the Board, decided:

“45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude that 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.”

13.  The applicant’s application for leave to apply for judicial review of the Director’s Decision therefore fails in limine. I dismiss his application.

The Board’s Decision

14.  The Court of Appeal in Re Khan MD Omar [2019] HKCA 803, 19 July 2019 at §18 held that lack of language assistance is not a ground for judicial review.

15.  The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22 held that the applicant is not entitled to free legal representation at every stage of the proceedings as he had already had duty lawyer’s service at the screening stage.

16.  The Court of Appeal in Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14 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.

17.  The Board had set out the reasons in its Decision why it found his claim failed, applying the relevant statutory provisions and the Convention to his case. It was entitled to form its own views after assessment of the evidence before it. The applicant is not able to identify what error the Board had committed for coming to its decisions.

18.  Grounds (1) and (6) are his opinions without any evidence or particulars in support of them.

19.  Grounds (2) and (3) fail in light of the Court of Appeal’s decisions.

20.  Grounds (4) and (5) are simply not true as the Board had set out its reasons in its Decision.

21.  The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.

CONCLUSION

22.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant 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