DILOO MOHAMMED alias MOLLA ALI ASGAR v. TORTURE CLAIMS APPEAL BOARD

HCAL 601/2021

[2025] HKCFI 197

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 601 OF 2021

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court / the Applicant being absent in open court;

1. Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 28 May 2020 be refused; and

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

Observations for the Applicant:

1.  The Applicant is a 50-year-old national of India who had previously in 2001 entered Hong Kong under a different identity and subsequently overstayed, and was then arrested and deported back to India in the same year, and some 7 years later on 2 April 2008 again arrived in Hong Kong as a visitor under his present identity with permission to remain as such up to 18 April 2008 when he did not depart and instead overstayed, and was arrested by police on 27 April 2008 and subsequently convicted of the offence of possessing a false travel document and sentenced to prison for 4 months. After he was discharged from prison and was referred to the Immigration Department for deportation, he raised a torture claim later taken as a non-refoulement claim for protection on the basis that if he returned to India he would be harmed or killed by his creditor over his unpaid debts. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Kolkata, India. After leaving school he ran a fruit selling business in his home district to make his living.

3.  In 2006 he expanded his business with the help of a loan borrowed from a local money-lender to be repaid by monthly instalments with interests which he managed to do from his business income.

4.  However, in 2007 his shop was damaged by a flood which led to serious business losses, and when he defaulted with his monthly loan repayments, his creditor started to send men to threaten him, and after being severely beaten by those men on 2 occasions the Applicant became fearful for his life, and on 1 April 2008 departed India for Hong Kong where he subsequently overstayed, and upon his arrest by police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 19 November 2014 with legal representation from the Duty Lawyer Service (“DLS”) but failed to attend any of the scheduled screening interviews before an immigration officer due to alleged medical issues.

5.  By a Notice of Decision dated 9 March 2015 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

6.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his creditor and followers upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of his creditor to seriously harm or kill him other than to press him to repay his debts, that in any event it was a private monetary dispute between him and his creditor only without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in India with a large population of 1.2 billion people spread across a vast territory of more than 3.2 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities such as Delhi where it would be difficult if not impossible for his creditor to locate him.

7.  On 23 March 2015 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 8 December 2015 before the Board during which he declined to give any further evidence or to answer questions raised of his claim by the Adjudicator for the Board. On 27 January 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence as contained in the hearing bundle before the board but which he declined to explain or clarify during the hearing that the Board doubted the credibility of his claim of fear of harm from his creditor that caused him to leave his country to come to Hong Kong to seek protection, that even if such claim were true that there was no reliable evidence of any real intention of his creditor to seriously harm or kill him other than to press him to repay his debts, and that in any event it was a private monetary dispute between the 2 of them only without any official involvement that state or police protection would be available to the Applicant upon his return to India as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located by his creditor that his claim for non-refoulement protection failed on all then applicable grounds.

9.  The Applicant never sought any legal challenge of this decision of the Board by way of judicial review, but meanwhile on 27 March 2017 the Director on his own initiative invited him Applicant to submit any additional facts which he may consider relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute and non-derogable rights under the HKBOR including right to life under Article 2 (“BOR 2”), and in the absence of any response from him, the Director by a Notice of Further Decision dated 15 November 2017 also rejected the Applicant’s BOR 2 Claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR including right to life under BOR 2 being violated upon his return to India.

10.  On 17 December 2018 the Applicant again lodged an appeal to the Board against this Further Decision of the Director, but as his appeal was clearly outside the 14-day period within which to file the appeal under Section 37ZS (1) of the Immigration Ordinance, and in pursuance of Section 37ZT (2) of the Ordinance, the Board proceeded to decide as a preliminary decision whether to allow the late filing of the appeal, and by a Decision dated 28 May 2020 the Board refused to allow the late filing of the Applicant’s Notice of Appeal upon finding that it had been late by more than 12 months, that it was a very significant delay for which the Applicant’s bare assertion of never receiving the decision in the mail was not credible or acceptable given the Director’s subsequent confirmation of having sent the decision on the same day to the Applicant’s then reported address as well as to his lawyer from DLS without being returned through undelivered post, and that there were no special circumstances that would make it unjust not to allow the late filing of the Applicant’s Notice of Appeal.

11.  On 30 April 2021 the Applicant filed his Form 86 for leave to apply for judicial review of this second decision of the Board, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date in which he just asserted that he does not agree with the decision but without providing any reason why, or did he put forward any proper ground for his intended challenge.

12.  By then the Applicant was also out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

13.  As the last day of the three-month period for him to file his Form 86 fell on 28 August 2020, the Applicant was therefore some 8 months late with his application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

14.  In the Applicant’s case, a delay of 8 months must be considered as very substantial and inordinate, for which he did not provide any explanation or reasons in his Form or affirmation, and as the record shows that the decision was sent on the same day of 28 May 2020 to his then reported address without being returned through undelivered post, I am unable to see any good or valid reason for his such serious delay.

15.  As for the merits, if any, of his intended application, as noted above that the Applicant has also failed to put forth any proper ground for his intended challenge. As such, and in the absence of any error of law or irrationality or procedural unfairness in his appeal to the Board or in its decision being clearly and properly identified by the Applicant, I do not find any merits in his intended application either.

16.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

17.  In the Applicant’s case, the Board refused to allow the seriously late filing of his appeal for the thorough detailed and correct analysis and reasoning as set out in its decision with the benefit of having previously heard the Applicant in evidence in his first appeal hearing and dealt with the merits of his claim in its first decision, and in the absence of any error of law or procedural unfairness in this second appeal to the Board or in its decision being clearly and properly identified by the Applicant, and on the factual basis of even his own case that his claimed risk arose from some private monetary dispute between him and his creditor only without any state or official involvement that it simply did not engage the BOR 2 ground due to its limited scope, I do not find any reasonably arguable basis to challenge the finding of the Board.

18.  Furthermore, the fact is that it has also been correctly established by both the Director and the Board in their respective earlier decisions that the risk of harm in the Applicant’s claim even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

19.  Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim not just on BOR 2 but all the applicable grounds in both of their respective decisions.

20.  Moreover, the Applicant on 16 April 2024 filed an affirmation requesting to withdraw his application as he no longer has any problem in his home country but without any further necessary or relevant details or explanation.

21.  In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay and his subsequent confirmation of no more problem in his home country, I refuse to extend time and accordingly dismiss his leave 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