AKRAM WASIM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 234/2019

[2022] HKCFI 358

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 234 of 2019

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Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Extension of time for the application for Judicial Review be refused &

the application for Judicial Review be dismissed.

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 April 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”). The applicant’s application is late for about 19 months.  I shall deal with this issue below.

2.  The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.

The applicant

4.  The applicant is a national of India.  He last entered Hong Kong on 19 August 2013 as a visitor.  However, after one extension of time, he did not depart and overstayed.  On 18 September 2013, he was arrested by the police and lodged a torture claim on 29 September 2013 which was later withdrawn.  On 9 November 2013, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by the members of All India Trinamool Congress (“TMC”) as he refused to join them. 

5.  According to the applicant, he belonged to the Communist Party of India (Marxist) (“CPIM”) and often participated in the events.  In around March or April 2013, CPIM lost the election and TMC came into power.  He was asked by 5 to 6 TMC members to join them but he refused.  Two weeks after, the applicant was assaulted with bare hands and legs.  Upon the advice of his friend, the applicant left for Hong Kong for the first time.  He returned to India on 25 May 2013 and learnt that the TMC members were still looking for him.  The applicant then left for Hong Kong a second time.  On 20 July 2013, he returned to India again on the impression that the problem was solved.  However, he was followed by one of his attackers.  Again, he fled to Hong Kong and stayed for protection.  Details of his story are set out in paragraph 6 of the Director’s Decision and paragraphs 1 to 12 of the Board’s Decision described below.

The Director’s Decision

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

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

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”).

7.  By a Notice of Decision dated 11 December 2015 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director found that the level of risk of him being harmed or killed upon refoulement was assessed to be low [10]-[14]; that state protection was available to him [15]-[17]; and that internal relocation was an option open to him [18]-[20]. 

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board.  The Board scheduled an oral hearing on 19 September 2016 for his appeal. 

9.  Having considered the applicant’s evidence, the Board dismissed his appeal as they were unconvincing and lacked authenticity.  The Board was not persuaded that the TMC people would ask the applicant to join them after the election and did so without the applicant’s alleged vast social network.  Even on the applicant’s alleged incidents, the Board found that the TMC people did not intend to seriously harm the applicant given the minor injuries they inflicted on him [20]-[24].  The Board also found his stories of coming back and forth between Hong Kong and India unrealistic and that there was no credible evidence why the TMC people would focus on him so extensively [25]-[34]. Further, the Board placed little weight on his hearsay evidence [35]-[36].  In any event, the Board found that there was no state involvement [38]-[40] and that internal relocation to cities like New Delhi was available to him [52]-[55].  Thus, the Board rejected his claim on the applicable grounds.     

Application for leave to apply for judicial review

10.  The applicant filed Form 86 on 24 January 2019 for leave to apply for judicial review of the Board’s Decision.

11.  In his affirmation in support of his application, he enclosed the documents of the Immigration Department, the Board’s Decision and the hearing bundle without setting out any specific ground in support of his application.

DISCUSSION

12.  As mentioned in paragraph 1, the applicant’s application is late. The Court has to consider the length of the delay, the reasons for the delay, the prospect of the intended application and the prejudice to the putative respondent if extension of time is granted. Also, the Court should not grant extension for a hopeless application. See AW v Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 and Re Adumekwe Rowland Ejike [2019] HKCA 702, §19. I shall, therefore first consider the merit of the applicant’s case.

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 CA §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

14.  The Court will bear in mind that the Board’s Decision 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 applicant has not raised any valid ground to challenge the Board’s Decision.

17.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

18.  There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

19.  I therefore refuse to extend time for the applicant to apply for leave 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