AJAZ AHMED v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3279/2019

[2024] HKCFI 471

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3279 of 2019

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 present in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 17 October 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.  The applicant did ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, he appeared before the Court on 28 June 2023.

3.  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

4.  The applicant is a national of India. He last entered Hong Kong illegally on 13 May 2012 and was arrested by the police on the same date. He had previously entered Hong Kong and on 28 October 2010 and raised a torture claim, which was withdrawn on 23 September 2011 upon his own cancelation. On 15 May 2012, the applicant raised a second torture claim, which was rejected on 18 September 2012. On 5 April 2013, he lodged a non-refoulement claim. His claim was therefore assessed on all applicable grounds other than that on torture risk[1].

5.  The applicant claimed that, if refouled, he would be harmed or killed by Harkat-UL-Mujjahidin (“HULM”) members and the Indian army. His fear of harm of the HULM members arose in an incident on 10 August 2010 when four HULM members forcibly entered his house and demanded for food. They also threatened to kill the applicant if he refused to join them. They left on 11 August 2010. However, after they left, the applicant’s house was surrounded by the Indian army who accused him of working for the HULM. The army detained the applicant and interrogated him for information of the HULM members. After his release, the applicant escaped to other cities and fled to Hong Kong for the first time.

6.  When he returned to India on 10 October 2011, his family warned him not to return home because his cousin was abducted by the Research and Analysis Wing agency because his cousin was suspected to be the informant of HULM. As a result, the applicant stayed in a hotel and nothing eventful happened. Feared for his safety in India, the applicant fled to other countries before seeking protection in Hong Kong. Details of his claim are set out at paragraph 8 of the Notice of Decision dated 2 August 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

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

a.  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”);

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”).

8.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [13]-[17]; (ii) state protection would be available to him [18]-[26]; and (iii) internal relocation was also a viable option [27]-[31].

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board. On 20 September 2019, the Board conducted an oral hearing for his appeal.

10.  The Board recapped the applicant’s case [6]-[10]. Having considered the evidence, the Board found that the applicant was evasive in answering the inquiries [19]. It noted that the applicant did not seek protection when he first fled to other countries [20]. It also noted that the HULM, allegedly claimed to be based in Kashmire by the applicant, was in fact a terrorist group in Pakistan [23]. As a result, the Board attached no credence to his claim. In any event, the Board found that on his own evidence the applicant did not face any problem when he moved to other parts of India [27]-[31].

11.  For the above reasons, the Board rejected the applicant’s claim and dismissed his appeal.

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

12.  The applicant has filed Form 86 dated 4 November 2019 for leave to apply for judicial review of the Board’s Decision.

13.  In the applicant’s affirmation in support of his application, the applicant said that if he returns to India, he will be arrested by the Army and torture by them for information of the militant group. He does not risk his life there.

DISCUSSION

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

15.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that he understands the Board’s Decision, but he does not agree with it. He further said that he had seen what happened in Kashmir and he was telling the truth.

16.  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.”

17.  The Board had, for the reasons given in paragraph 10, supra, rejected the applicant’s evidence on the facts of his claim. The applicant has given no valid reason to challenge the Board’s Decision.

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

CONCLUSION

19.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. 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