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

HCAL 3262/2019

[2025] HKCFI 3348

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3262 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 had lodged non-refoulment claim protection with the Director of Immigration (“the Director”).  By the decisions below, the Director refused his claim:

(1)  Notice of Decision dated 23 February 2015 (“the Director’s 1^st Decision”) on Torture risk, BOR 3 risk and Persecution risk as described below; and

(2)  Notice of Further Decision dated 12 May 2017 (“the Director’s 2^nd Decision”) on BOR 2 risk as described below.

2.  The applicant appealed the Director’s Decisions to the Board, which dealt with his appeals by the following:

(1)  Decision dated 28 March 2017 (“the Board’s 1^st Decision”), dismissing his appeal against the Director’s 1^st Decision; and

(2)  Decision dated 20 September 2019 (“the Board’s 2^nd Decision”), refusing to extend time for the applicant to file his notice of appeal, which was late for 3 days, on BOR 2 risk; in effect, dismissing his appeal.

3.  The applicant did not apply for judicial review against the Board’s 1^st Decision.  He only applied for judicial review against the Board’s 2^nd Decision.

4.  Since the Board’s 2^nd Decision relied on the same facts of the Board’s 1^st Decision, the Court will take into consideration of the Board’s 1^st Decision for its assessment of the Board’s 2^nd Decision.

5.  The applicant asked for a hearing.  He appeared before the Court on 7 July 2025.

6.  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

7.  The applicant is a national of India. According to records, the applicant was arrested by police on 9 October 2009 for illegally remaining.  The applicant stated that he sneaked into Hong Kong from Shenzhen on 9 October 2009.  In due course, the applicant lodged his non‑refoulement claim.

8.  The applicant’s claim is based on his fear of being harmed or killed by his cousin and his family due to a land dispute if he returns to India.

9.  According to the applicant, his father owned land that was previously registered in his grandfather’s name but did not keep any official document, which indicated that he was the owner.  In around July 2009, the applicant’s cousin suddenly claimed ownership of the land.  Some days later, the applicant, his brother, and paternal cousin were attacked by his cousin and his people with sticks and knives.  The applicant did not suffer visible injuries but had internal injuries.  He did not report the attack to police.  Details of his claim are set out at paragraph 6 of the Notice of Decision dated 23 February 2015 by the Director (the “Director’s Decision”).

The Director’s Decisions

10.  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”).

11.  By way of the Director’s 1^st Decision, the Director assessed the applicant’s claim on all applicable grounds except BOR 2 risk and dismissed his claim.  In summary, the Director found that: the level of risk of being harmed or killed was assessed to be low, and the low intensity and frequency of past ill-treatment in the past was indicative of a small future risk of harm [11-13] reasonable state protection was available [14]; and internal relocation alternatives were available and reasonable [15-19].

12.  By way of the Director’s 2^nd Decision, the Director assessed the applicant’s claim on the ground of BOR 2 risk and dismissed his claim.  In summary, the Director found that: the applicant did not provide further additional materials or facts [3]; and having carefully reviewed the applicant’s claim, in the absence of additional information, it held that the applicant failed to establish BOR 2 risk [5-6].

The Board’s Decisions

13.  The applicant appealed the Director’s 1^st Decision to the Board.  On 3 February 2016, the Board conducted an oral hearing for his appeal.  At the hearing, the applicant refused to give evidence [17-19].

14.  Having considered the evidence, the Board found that the applicant’s evidence was full of contradictions and because the applicant, on his own admission, stated that the attack was not serious [20-23].  In any event, the Board found that state protection was available [26-29] and internal relocation was not unduly harsh [38-41].  It therefore dismissed his appeal against the Director’s 1^st Decision.  See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003262_2019_files/1st_Board's_Decision.pdf.

15.  The applicant appealed against the Director’s 2^nd Decision to the Board, but he was late for 3 days in filing the notice of appeal.  The applicant gave written explanation that he had just obtained the application form for the appeal.  The Board was not satisfied with his explanation. Applying section 37ZT of the Ordinance to the case, the Board refused to extend time for the applicant to file his notice of appeal, in effect, dismissed his appeal.  The Board did not consider the merit of the case in respect of BOR 2 risk before passing the Board’s 2^nd Decision.  See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003262_2019_files/2nd_Board's_Decision.pdf.

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

16.  The applicant has filed Form 86 dated 1 November 2019 for leave to apply for judicial review of the Board’s 2^nd Decision.

17.  In his affirmation in support of his application, the applicant said he did not agree with the Director, but he did not give any specific reason to challenge the Board’s 2^nd Decision.

DISCUSSION

18.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.  Before me, the applicant said that he did not have anything to say about the Board’s Decisions.  He simply wanted the Court to review them.  

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 Board’s 2^nd Decision has not complied with the directions of the Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, Hon Yuen JA, Lisa Wong J, 2 April 2019:

“18. …where there is a serious or significant breach for which no good reason is given, the decision maker moves to evaluate all the circumstances of the case with a view to dealing justly with the application.

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, since the Board had, by the Board’s 1^st Decision, dismissed the applicant’s claim on other applicable risks including BOR 3 risk, and he did not apply for judicial review of the Board’s 1^st Decision, there is no arguable ground for the BOR 2 risk, as decided by 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, which 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].”

22.  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

23.  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.

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