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

HCAL 3124/2019

[2025] HKCFI 1849

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3124 OF 2019

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 18 October 2019 of the Torture Claims Appeal Board (“the Board’s 2^nd Decision”), refusing to extend time for him to file his notice of appeal, effectively dismissing his appeal against the Director’s 2^nd Decision on BOR 2 risk.

2.  By the Board’s 1^st Decision, the Board had dismissed the applicant’s appeal against the Director’s 1^st Decision, dismissing his claim on the Torture risk, BOR 3, and Persecution risk. Since the Board’s Decisions are based on the same set of facts, I shall take into consideration of the Board’s 1^st Decision as well in this application.

3.  The applicant asked for a hearing. However, he was absent at the hearing on 23 April 2025. I shall deal with his application on the papers.

4.  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

5.  The applicant, aged 34, is a national of India. He came to Hong Kong on 20 May 2007 as a visitor. He overstayed and was arrested by police on 16 September 2008. He was referred to the Immigration Department where he lodged a non-refoulement claim on the basis that, if refouled, he will be harmed or killed by the family members of 2 injured passengers because they blamed him for causing death and amputation in a traffic accident. He also feared to be falsely accused by the Indian police.

6.  According to the applicant, he was a van driver in India. In May 2007, he was driving the van and collided with a rickshaw. The driver of the rickshaw jumper out and ran away. The 2 passengers of the rickshaw were badly injured. One passenger died shortly afterwards, and the other had his leg amputated. Family members of the victims went to his house to look for him. He had moved to live in other places. His mother told him that they had threatened to kill him if they saw him. They had also damaged the furniture in the house with hockey sticks on 2 occasions. His mother reported the matters to police. Police were investigating into the matters and the accident. He was scared, and upon his mother’s advice, he left India and came to Hong Kong.

7.  Details of his claim are set out in paragraph 7 of the Notice of Decision dated 26 February 2015 (“the Director’s 1^st Decision”).

The Director’s Decisions

8.  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”).

9.  By way of the Director’s 1^st Decision, the Director dismissed the applicant’s claim on Torture risk, BOR 3 risk and Persecution risk. The Director found that his belief that the victims’ family members will harm or kill him if he returns to India was not supported by evidence; that state protection will be available; and that internal relocation is viable. [17]-[29]

10.  By way of the Notice of Further Decision dated 6 April 2017 (“the Director’s 2^nd Decision”), the Director dismissed the applicant’s claim on BOR 2 risk for the reason that the applicant failed to establish that his personal and real risk protected under BOR 2 risk will be violated if he returns to India.

The Board’s Decisions

11.  The applicant appealed the Director’s 1^st Decision to the Board. On 25 January 2016, the Board conducted an oral hearing for his appeal. However, he was absent. The staff called him by phone. He said he had overslept and he refused to attend the hearing. The Board gave him notice to explain his absence. He simply said, “SORRY iM FORGET’. The Board was not satisfied with his explanation and proceeded to assess the evidence before it for his appeal.

12.  Having considered the evidence, the Board found that there was no evidence to show that the state was involved [7]-[8], and even if his allegations were true, he should have state protection, and internal relocation is viable. [32] The Board had also taken into consideration that the applicant did not seek protection immediately after he had arrived in Hong Kong, but only sought protection after 15 months, which damaged his credibility.

13.  For those reasons, the Board dismissed the applicant’s appeal against the Director’s 1^st Decision. The applicant did not ask for judicial review of the Board’s 1^st Decision.

14.  The applicant appealed the Director’s 2^nd Decision to the Board. He was out of time and applied for extension of time. The Board applied section 37ZT of the Immigration Ordinance, Cap. 115 to the application. It required the applicant to explain why he was late in filing the notice of appeal. He did not give any reasons for his delay. The Board therefore refused to extend time for him to file his notice of appeal, effectively dismissing his appeal against the Director’s 2^nd Decision.

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

15.  The applicant has filed Form 86 dated 22 October 2019 for leave to apply for judicial review of the Board’s 2^nd Decision.

16.  In Form 86 or in his affirmation in support of his application, the applicant did not raise any specific ground to challenge the Board’s 2^nd Decision.

DISCUSSION

17.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s 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).

18.  The Court will bear in mind that the Board’s 2^nd Decision should be examined with rigorous examination and anxious scrutiny.

19.  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.”

20.  The Court has noted the decision of the Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, Hon Yuen JA, Lisa Wong J, 2 April 2019, in a case where the applicant was late in filing his notice of appeal to the Board and he had given no reason for such delay, the Court of Appeal held:

“20. … …it was incumbent upon the Board, in exercise of its discretion to extend time for appeal, to take the merits of the applicant’s case into account regardless of the procedural breaches or the lack of explanation therefor.”

21.  However, I find that there is no merit in the applicant’s application for the reasons below.

22.  First, it is the same adjudicator who had considered his appeal against the Director’s 1^st Decision and he dismissed the appeal on the merits of the case. Therefore, he must be aware of the merits of the applicant’s claim for his appeal against the Director’s 2^nd Decision.

23.  Second, since his claim on BOR 3 has failed, there is no chance that he will succeed on his claim on BOR 2 risk as 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].”

24.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s 2^nd Decision.

DISPOSITION

25.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s 2^nd Decision. Accordingly, I dismiss his application.