SHABBIR ALI MOHAMMAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1216/2020

[2025] HKCFI 4266

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1216 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;

1.   The extension of time for the application for Judicial Review be refused; and

2.   The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

THE APPLICATION

1.  The applicant is an illegal immigrant.  He had lodged a non-refoulement claim with the Director of Immigration (“the Director”).

2.  The Director treated his claim as a subsequent claim because he lodged a torture claim in March 2009.  The Director refused his claim and he was repatriated to India on 17 April 2012.  He returned to Hong Kong in May 2014 and the Immigration Department refused his entry. He then lodged his above non-refoulment claim, which the Director accepted as his subsequent claim.

3.  The Director had issued 2 decisions in relation to his subsequent claim:

(1)  Notice of Decision dated 27 August 2014, refusing his claim on Torture risk, BOR 3 risk and Persecution risk (“the Director’s 1^st Decision”); and

(2)  Notice of Director’s Further Decision dated 19 September 2017, refusing his claim on BOR 2 risk (“the Director’s 2^nd Decision”).

4.  The applicant appealed against the Director’s 1^st Decision to the Board. By Decision dated 12 January 2015 (“the Board’s Decision”), the Board dismissed his appeal.

5.  By Form 86, the applicant applies for leave to apply for judicial review of the Board’s Decision and the Director’s 2^nd Decision.

6.  The applicant’s application for judicial review of the Director’s 2^nd Decision fails in limine and is struck out because the Director’s 2^nd Decision had never been appealed to the Board, which is an abuse of the administrative structure as decided by the Court of Appeal.[1]

7.  His application for leave for judicial review of the Board’s Decision is late.  His application shall not be later than 3 months from the date of the Board’s Decision[2], which expired on 12 April 2015.  His application was filed on 17 June 2020, which is late for more than 5 years and 2 months. This issue will be dealt with below.

8.  The applicant asked for a hearing.  However, he was absent at the hearing on 27 August 2025.  I shall deal with his application on the papers.

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

The applicant

10.  The applicant is a national of India. His non-refoulement claim is on the basis that, if refouled, he will be harmed or killed by his creditor, Asif because he owed him money.  He was unable to repay his debt and he agreed to work for Asif’s Communist Party of India (Maxist).  Another person called Rajesh, the President of the Trinamool Congress Party asked him to work for his party for the election campaign. He refused.  Rajesh and his followers attacked him.  They had also threatened him with death.

11.  Details of the applicant’s story can be found in the Board’s Decision.  See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001216_2020_files/the_Board's_Decision.pdf.

The Director’s Decisions

12.  The Director considered the applicant’s claim in relation to the following risks:

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

b.   risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“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”).

13.  By the Director’s 1^st Decision, the Director refused the applicant’s subsequent claim on the applicable risks other than BOR 2 risk for the reason that it was unsubstantiated.  Besides, state protection will be available and internal relocation is viable, which will mitigate or neutralize the risks.

14.  The Director invited the applicant to submit additional materials in support of his claim on BOR 2 risk.  The applicant submitted additional materials, which the immigration officer had considered.  By the Director’s 2^nd Decision, the Director dismissed the applicant’s claim on BOR 2 risk.

The Board’s Decision

15.  The applicant appealed the Director’s 1^st Decision to the Board.  On 5 December 2014, the Board conducted an oral hearing.  The applicant and the Director were legally represented.

16.  Having considered the applicant’s evidence and the parties’ submissions, the Board had made the finding of the facts below.

(1)  The terms of the loan agreement the applicant had made with Asif were unbelievable. [36(c)]

(2)  The Board disbelieved that the applicant was such an outstanding worker that Rajesh would spend time and used threats and violence to recruit him. [42]

(3)  The applicant’s evidence was riddled with inconsistencies, contradictions and implausibility in relation to the core issues of his case, which had a detrimental effect on the credibility and reliability of his evidence. [58]

(4)  The Board considered that it would not be likely for the applicant to face any genuine and substantial risk of harm, if refouled. [95]

(5)  Internal relocation is viable. [112]

17.  For the reasons above, the Board dismissed the applicant’s appeal and affirmed the Director’s 1^st Decision.

Application for leave to apply for judicial review of the Board’s Decision

18.  The applicant has filed Form 86 dated 17 June 2020 for leave to apply for judicial review of the Board’s Decision.

19.  In his affirmation in support of his application, the applicant said that he was not given a chance to make submissions to the Board and the Board had relied on the source of news, which is not officially recognized or it is simply hearsay.  It had also relied on outdated cases, resulting it make speculations that if is safe for him to return to his country.

DISCUSSION

20.  As mentioned in paragraph 7, this application is late.  In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the applicant’s case.

21.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

22.  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.”

23.  The grounds under paragraph 19 are not valid to challenge the Board’s Decision as he was legally represented before the Board.  Those complaints he made should not have appeared before the Board.  They are only bare assertions without any evidence in support.

24.  In the circumstances, the applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

25.  I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss his application.

26.  I should also mention here, if the applicant appeals the Director’s 2^nd Decision to the Board, he will not have an arguable case.  The Court of Appeal in Kulwinder Kaur v Director of Immigration and Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2022] HKCA 48, Hon Chu, JA (as she then was), Barma JA and Au JA ,7 January 2022, held:

“59. … upon determining that there is no BOR 3 risk, there is no arguable ground for any BOR 2 risk: see AA v Sweden (2017) 64 EHRR 20 at [52] and [96]; RM v Gerard Paul Muttrie Esq (unrep., HCAL 166/2015, 3 March 2016) at [52].”

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