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HCAL 1922/2018
[2020] HKCFI 1198
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1922 of 2018
BETWEEN
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Ahmed Aftab |
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 28 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).
2. The applicant asked for a hearing. However, he was absent on the day of hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, I shall deal with his application on paper.
3. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 was amended by adding the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”) as proposed respondent and by deleting the Board as interested party.
The applicant
4. The applicant is an Indian national. He came to Hong Kong on 29 January 2015 as a visitor. He was allowed to stay until 4 February 2015. He overstayed and surrendered to the Immigration Department on the next day. He lodged his non-refoulement claim on 14 April 2015.
5. He claimed that if refouled, he would be harmed or killed by Sarfraz Ahmed, his creditor, because of money dispute.
6. In 2013, he entered into a partnership with Sarfraz on trading of garments. He contributed 500,000 Indian Rupees and Sarfraz, 1.3 million, totally 1.8 million Indian Rupees. They shared profits proportionally. He was responsible for the daily running of the business. He sold the garments on credit. The credit period ran for up to four or five months. He was unable to collect the outstanding amounts. The business collapsed and all monies were lost. He told Sarfraz so. Sarfraz accused him of cheating him and demanded repayment of the invested money. He was unable to repay the money. Sarfaraz came to his house with some gangsters from time to time, causing disturbance to his family. They threatened to beat him up if he could not repay the money.
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 27 March 2018 (“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 that he returned to India was low [12]; that state protection would be available to him [13] and that relocation was an option open to him [18]. He was unable to establish BOR 2 risk [24].
The Board’s Decision
9. The applicant appealed to the Board against the Director’s Decision. He attended a hearing before the Adjudicator on 31 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 evidence was generally acceptable and reliable [26]. However, it found that the facts as revealed by the applicant showed that it was unlikely that severe pain or suffering would be inflicted upon him if he returned to India[29]; that it was a private business without any involvement of any public officials and there was no evidence of any state instigation or acquiescence [30]; that he admitted in the hearing that his wife and daughter had repaid part of his debt and that they would be able to repay the money fully to Sarfraz, therefore there was no evidence to show that he would suffer ill-treatment or serious harm if he returned to India [36]; that internal relocation was available to him [40]; that there was no evidence to establish Prosecution risk [45] and that there was no evidence to establish BOR 2 risk [50].
Application for leave to apply for judicial review
12. The applicant filed Form 86 on 13 September 2018 for leave to apply for judicial review of the Board’s Decision.
13. In his affirmation in support of his application, he relied upon the grounds below.
(1) The Board failed to maintain high standard of fairness by not holding an oral hearing for him.
(2) Alternatively, the Board should not approach the appeal by finding faults with the Director, but should proceed by way of a re-hearing.
(3) The Board failed to act fairly under the common law.
(4) The Board did not take into account that he was unrepresented and it did not inform him that he could complain.
DISCUSSION
14. The Board had held a hearing, as per the Board’s Decision. Ground (1) fails.
15. InAhmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22, the Court of Appeal held that the applicant has no absolute right of free legal representation at every stage of the proceedings. It would be sufficient if he was provided with legal representation at the screening stage. Ground (4) fails.
16. The other grounds (2) and (3) are irrelevant as the Board accepted his evidence. It had applied the statutory provisions and the Convention to the facts of the case.
17. There is no evidence to show that the Board erred in the application of the laws to his 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 his intended judicial review. Accordingly, I dismiss his application.
Dated the 16th day of June 2020
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(Mike Mak) |
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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 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 16/6/2020
Ahmed Aftab
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 16/6/2020
Torture Claims Appeal Board/ Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 11092/18/4/102/IN2151
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 662/18 (formerly RBCZ 11997/15)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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