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

HCAL 1777/2018

[2020] HKCFI 1398

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1777 of 2018

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)  Extension of time for application for leave to apply for judicial review of the decision of Torture Claims Appeal Board dated 23 April 2018 be refused; and

(2)  Application for leave to apply for judicial review be dismissed.

IT IS FURTHER DIRECTED that:

(1)  If the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

(2)  When filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

(3)  The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

(4)  If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

(5)  Liberty to apply.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review of the Decision dated 23 April 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant is not legally represented and he did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV 8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court, by letter, invited the applicant to appear before it in order to explain the above to them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant did not attend the hearing scheduled on 14 January 2020. I shall proceed to consider 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 deleting the Director of Immigration (“the Director”) 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 27 April 2013 as a visitor and was allowed to stay until 11 May 2013. He overstayed and was arrested by police 11 May 2013. He was referred to the Immigration Department on 2 September 2013. He lodged a non-refoulement claim on 3 September 2013.

5.  He claimed that if refouled, he would be harmed or even killed by the brother of Poja Kumari (Poja) because he had started his love relationship with Poja and had once assaulted her father.

6.  The applicant came from a Muslim family and Poja, from Hindu Bengali. He knew that he could not marry her unless one of them changed religion belief. In 2013, he eloped with Poja to another place. However, her father went to his shop and looked for him. The father asked his sister to disclose their whereabouts. She did not tell him, whereupon he slapped her face a few times. She complained to the applicant, who went to Poja’s father’s house and assaulted him on his face and stomach, causing him to bleed from the mouth. The applicant was afraid. He packed up and left India for Hong Kong.

THE DIRECTOR’S DECISIONS

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 31 December 2015 and another Notice of Decision dated 25 January 2017, collectively called “the Director’s Decisions”, the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that the level of harm he faced from Poja’s brother upon his return to India was assessed to be unlikely to materialize [11]; that state protection was available to him [15] and internal relocation was an option open to him [16]. His claim under BOR 2 risk was not established.

THE BOARD’S DECISION

9.  The applicant appealed to the Board against the Director’s Decisions. He did not attend the hearing schedule for him on 13 March 2017. The Board had written to him for an explanation at an updated address obtained from the Immigration Department. He did not reply either. The Board then proceeded to consider his case on the evidence in the hearing bundle.

10.  By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decisions.

11.  The Board considered the evidence and found that there was no independent evidence or documents to support his claim that he was at risk of torture or ill‑treatment other than a threat related by his mother. There was no documentary evidence of any complaint by Poja’s father or her brother to the police and he was never ill-treated or punished in any way by Poja’s brother or father. The Board concluded that the evidence in support of his claim was inadequate [18]. The Board further found that there was no evidence that the state was involved in the incidents [34]; that state protection should be available to him although the applicant did not seek police protection [47] and finally internal relocation was an option open to him [50].

Application For Leave To Apply For Judicial Review

12.  The applicant filed Form 86 on 29 August 2018 for leave to apply for judicial review of the Board’s Decision.

13.  In his affirmation in support of his application, he did not set out the grounds in support of his application. He did not say what error the Board had committed in coming to its decision.

DISCUSSION

14.  In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them.  The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

15.  The Board had considered the merits of his case by reference to the evidence available to it.

16.  There is nothing to show that the Board had committed any error in its application of the law to his case or in coming to its conclusions on the facts of the case.

17.  The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.

CONCLUSION

18.  I therefore refuse to extend time for the applicant to apply for leave to apply for judicial review. Accordingly, I dismiss his application.

FURTHER DIRECTIONS

19.  It is further directed that:

a.  If the applicant intendsto appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

b.  When filing the application for leave to appeal, the applicantmust at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

c.  The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

d.  If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

e.  Liberty to apply.

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