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

HCAL 2024/2020

[2025] HKCFI 405

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2024 of 2020

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;

Leave to apply for Judicial Review be refused.

Observation for the Applicant:

Introduction

1.  This is an application by Mr Asfaque Mohammed (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 19 March 2020 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 18 July 2018 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant

2.  The Applicant is an Indian. He was born on 9 February 1983 in West Bengal, India. He received 1 year of education and had worked as a salesperson and an operator of his own mobile phone and garment trading business.

The Claim

3.  In 2003, the Applicant borrowed money from 4 or 5 people who operated at a local market to start his own business. The total amount of the loan was US$35,000. The Applicant did not sign any agreement with his creditors and they did not charge him any interest. The Applicant used the money to import goods from Hong Kong, which were then sold to his creditors at low price and they could make a profit from selling the goods.

4.  The Applicant was refused permission to enter Hong Kong in around August 2008. He claimed that this caused him to lose about US$10,000 being value of goods kept in Hong Kong. The Applicant was unable to pay back the loans to his creditors. He received verbal threats from one of the creditors (“IM”). IM threatened to kill him if he did not pay back the money.

5.  According to the Applicant, IM was rich and had good connection with the local Indian police. IM was also close to senior members of different political organizations.

6.  The Applicant left India after being threatened by IM. He did not encounter other creditors and he was not afraid of them because they did not have connections with the authorities.

7.  On 21 November 2008, the Applicant tried to enter Hong Kong through Mainland China but he was again refused permission to land. He eventually entered Hong Kong illegally on 2 December 2008. After coming to Hong Kong, he learnt from his family that IM and his other creditors had been looking for him. They went to the Applicant’s sister’s place at least once a week and made threats to kill the Applicant upon his return to India if he did not repay them but they did not harm the Applicant’s family members. They also approached the Applicant’s friends for the Applicant’s whereabouts.

8.  The Applicant claimed that he would be harmed or killed by IM if he were returned to India because he was unable to repay IM’s loan.

Procedural history

9.  The Applicant was caught red-handed while attempting to enter Hong Kong illegally on 2 December 2008. On 6 December 2008, the Applicant made a claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT Claim”). The Director rejected the CAT Claim on 13 April 2012 and his appeal/petition to the Board was dismissed on 24 May 2012. The CAT Claim was thus concluded.

10.  By a written representation of 8 April 2013, the Applicant lodged the Claim. The Director had considered the Claim on the remaining applicable grounds (other than the CAT Claim) under the Unified Screening Mechanism (“USM”), namely:

(a)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR” and “BOR 2”);

(b)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the BOR (“BOR 3”); and

(c)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees (“Refugees Convention”).

11.  By the DOI Decision, the Director refused the Claim. The Applicant later filed an appeal/petition to the Board (“Appeal”). By the Board’s Decision, the Board affirmed the DOI Decision. The Board rejected and dismissed the Appeal.

12.  On 8 October 2020, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision. The Applicant filed his supporting affirmation on the same day (“Supporting Affirmation”). In the Form 86, the Applicant named the Board as the proposed respondent and interested party.

13.  On 29 August 2024, the Applicant filed another affirmation applying to withdraw this intended judicial review application stating that the problem in his country had been solved (“Withdrawal Application”).

14.  Order 53 rule 4(1) of the Rules of the High Court provides that:

“An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.”

15.  The Board’s Decision was issued on 19 March 2020. As such, the Applicant should have filed the Form 86 latest on 19 June 2020. The Form 86 was filed on 8 October 2020 and it was late.

16.  No application for extension of time to file the Form 86 was made by the Applicant.

17.  The Applicant was late for more than 3 months in filing the Form 86. This is a substantial delay. However, the Applicant has not applied for time extension to file the Form 86. No explanation has been provided by the Applicant for his late filing of the Form 86. As such, I have no basis to extend the time for the Applicant to file the Form 86 in this case and this application of the Applicant for leave to apply for judicial review is liable for dismissal on the ground of delay.

18.  For the sake of good order and completeness, I shall consider the merits of the Applicant’s application for leave for judicial review before deciding on how to dispose of the matters.

The DOI Decision

19.  After considering all the relevant circumstances, the Director was of the view that there were no substantial grounds for believing that IM intended to harm the Applicant. This was because IM had never physically harmed the Applicant or his family in India. He merely threatened the Applicant verbally but had never effectuated his threats. IM could have inflicted serious harm on the Applicant or even killed the Applicant if he really had the intention to do so.

20.  The Director did not accept that the ill-treatment that the Applicant claimed to have experienced attained a minimum level of severity. The absence of physical harm from IM in the past was indicative that future risk of harm from or being killed by IM upon the Applicant’s return to India was not real and foreseeable.

21.  The Director also found the Applicant’s failure to seek assistance from police or other authorities in India, or seek non-refoulement protection when he was in Mainland China or when he was refused entry to Hong Kong, to be inconsistent with his claim that he faced an imminent and substantial risk of harm in India.

22.  There was no indication that the ill-treatment suffered by the Applicant was planned by any political parties or representing any official stance to intimidate him. The Applicant obtained his Indian passport without hindrances and departed on strength of his own Indian passport without encountering any difficulties. These suggested that he was not a target of the government, police or any authorities in India, nor did any of them had any adverse interest in him. On the issue of state protection, after considering the relevant country of origin information (“COI”), the Director found that reasonable state protection would be available to the Applicant, if necessary.

23.  Since the problem between the Applicant and IM was private in nature, there was no reasonable likelihood that IM could mobilize the resources of any political party or police to track the Applicant throughout the whole country. The Director did not accept that IM was as powerful and influential as the Applicant claimed and could locate the Applicant by his own means and personal resources if the Applicant relocated to other cities in India. The Director found that internal relocation would be viable to the Applicant. If the Applicant moved to New Delhi or Mumbai, IM would have great difficulties in locating him. After considering his age and work experience, the Director found that it would not be unduly harsh to expect him to relocate and lead a normal life.

24.  For the reasons set out in the DOI Decision, the Director rejected the Claim.

The Board’s Decision

25.  For reasons stated in §§33-37 of the Board’s Decision, the Board was in grave doubt about the credibility of the Applicant. The Board could not be sure if the issue of loans, as described by the Applicant, really existed. The Board was of the view that without the acceptance of the Applicant’s version on the loans, there was no basis for the Applicant to support the Claim.

26.  In any event, for reasons stated in §§43-51 of the Board’s Decision, the Board was of the view that IM’s threat to kill the Applicant was more likely to be an empty threat and there was no substantial ground for believing that the Applicant would suffer severe ill-treatment or serious harm in violation of BOR 3 or would be deprived of his right to life in violation of BOR 2, upon his refoulement.

27.  Based on COI reports, the Board found that effective state protection would be available to the Applicant upon his return to India.

28.  As for internal relocation, the Board did not believe that IM would mobilize such resources to conduct a nation-wide search for the Applicant. The Board found that internal relocation to Delhi or Mumbai would be viable, and it would not be unduly harsh to expect the Applicant to relocate.

29.  The Board found no sufficient evidence to show a well-founded fear of persecution in the Applicant’s case. In any event, the feared risk was not due to one of the grounds referred to in the Refugees Convention. It also had nothing to do with the state authorities.

30.  The Board found that the Applicant had failed to establish his case on the remaining grounds (other than the CAT Claim) under the USM. The Board affirmed the DOI Decision and dismissed the Appeal.

Legal principles applicable to judicial review

31.  In a judicial review, the court does not step into the shoes of the decision makers.

32.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the Court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. 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: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.”

33.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

34.  In the Form 86, the Applicant did not put forward any grounds for his intended judicial review.

35.  In the Supporting Affirmation, the Applicant only produced the Board’s Decision with covering letter and the hearing bundle for the hearing before the Board as exhibits to the Supporting Affirmation. No other supporting documents had been produced and the Applicant did not state any grounds or reasons for his intended judicial review in the Supporting Affirmation.

36.  No proper ground for his intended challenge was stated in the Form 86 and/or the Supporting Affirmation. The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way was the Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters.

37.  Having rigorously examined the Board’s Decision and the DOI Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the remaining applicable grounds (other than the CAT Claim) under the USM; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

38.  The Board found that the evidence of the Applicant was incredible and unreliable. The Board found that the Applicant was unable to establish a real risk pertinent to any of the applicable grounds under the Claim. Furthermore, reasonable state protection and internal relocation would also lower and negate such risks, if any.

39.  It was on such basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection under any of the remaining applicable grounds (other than the CAT Claim) under the USM. These are findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality. In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The proposed judicial review is not reasonably arguable.

The Withdrawal Application

40.  The Applicant subsequently made the Withdrawal Application seeking withdrawal of his intended judicial review application. He stated that his problem in his country was solved and he wanted to return to his country.

41.  There is no evidence to show that the Applicant made the Withdrawal Application other than out of his own volition.

42.  Apart from the Withdrawal Application, there is nothing outstanding in this action.

43.  The Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 at §19(1) that:

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

Conclusion

44.  The Form 86 was filed out of time without leave of the court and having considered the Board’s Decision and the DOI Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

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