FAIYAZ AHMED alias SHAJAHAN SHAIKH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2147/2020

[2024] HKCFI 2510

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2147 OF 2020

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BETWEEN

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision made by letter dated 31 December 2015 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”) that his application for appeal would not be entertained because he had withdrawn his appeal by his letter dated 24 December 2015.

2.  The applicant asked for a hearing. He appeared before the Court on 21 August 2024. He confirmed that he had written a letter dated 24 December 2015 to the Board to withdraw his appeal out of his free volition and he was not under any influence to do so. However, he still asked this Court to consider his application. I shall set out the alleged facts of the case below.

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, aged 42, is an Indian. He entered Hong Kong for the first time on 3 October 2005 and was arrested on the same day for trafficking in dangerous drug. After serving his sentence, he was repatriated back to India on 5 December 2005. On 24 March 2008, the applicant arrived in Hong Kong again as a visitor. He overstayed since 6 April 2008 and was arrested by the police on 20 April 2008. He was convicted of the offence of making false representation to an Immigration Assistant and was sentenced to imprisonment of 15 months on 2 May 2008. The applicant made a torture claim in late May 2008, which he later withdrew on 20 February 2010. He was then removed from Hong Kong on 13 May 2011.

5.  On 9 February 2015, the applicant entered Hong Kong illegally and was arrested by the police on 14 February 2015. Upon the applicant’s request for re-opening his torture claim and given the commencement of the unified screening mechanism, his torture claim had been taken to be a non-refoulement claim and was assessed on all applicable grounds.

6.  The applicant’s claim was made on the basis that, if refouled, he would be harmed or even killed by a Tauhid and his underlings due to a money dispute. According to the applicant, Tauhid was a dedicated supporter of Indian National Congress (“INC”). During the applicant’s first trip to Hong Kong, he wore a pair of sandals given by Tauhid, which he was unaware there were Cannabis inside. The applicant was subsequently arrested and sentenced to imprisonment for trafficking in dangerous drug. He was then repatriated back to India in December 2005.

7.  Upon the applicant’s return to India, Tauhid blamed the applicant for the confiscation of Cannabis and demanded compensation for his loss within five months. The applicant was angry with Tauhid for setting him up. He therefore went to his home with a hockey stick and hit on his legs for 1-2 times. About 2-4 days later, Tauhid invited the applicant for a meeting to settle the dispute between them. After the applicant threatened to report Tauhid to the police, one of Tauhid’s underlings cut the applicant’s left arm with a kukri. The applicant managed to escape to the train station and took a train to his friend’s place. He however did not report the incident to the police, nor did he seek any medical treatment for his injury.

8.  While at his friend’s place, the applicant was informed by his mother that Tauhid and his underlings had gone to his house 5-6 times looking for him. When his friend went to check the situation for the applicant, he was abducted and assaulted. The applicant was worried about his safety after his friend told him that Tauhid had threatened to kill him if he ever saw him again. Upon the advice from his friend, the applicant relocated elsewhere.

9.  Around the end of 2007, the applicant returned home upon being informed by his friend that his mother was feeling unwell. Shortly thereafter, the applicant was confronted by Tauhid and his underlings, who took him to an abandon house by a van. The applicant was stabbed in the abandon house and eventually lost consciousness. Some passersby took him to the hospital, where he stayed for a few days. During the applicant’s hospitalisation, the police came to took statement for him, but he did not report against Tauhid because he did not want to get into trouble. Meanwhile, the applicant learnt from his friend that Tauhid had made a false report against him, though the police had not yet approached him.

10.  After the applicant’s discharge from hospital, he mostly hid in his house for 3-4 months. Upon taking the advice from his friends, the applicant came to Hong Kong for the second time using a different identity in February/March 2008. He was subsequently convicted of the offence of making false representation to an Immigration Assistant and was sentenced to imprisonment. Although the applicant made a torture claim in May 2008, he subsequently withdrew his claim on 20 February 2010 and returned to India on 23 May 2011 because another friend of his told him that the situation had much improved.

11.  The applicant kept a low profile upon returning to India and stayed at home most of the time. Yet, after 1-2 months, Tauhid and his underlings found out about the applicant’s return and they started prowling around his house. Out of fear, the applicant relocated away from his hometown again.

12.  In around October 2013, the applicant returned home after learning from his friend that his mother was seriously ill. On 3 August 2014, the applicant was attacked by around 3-4 masked men with choppers while returning home. His neck and right arm were injured. Eventually, he lost consciousness after his head was attacked by a hard object. The applicant was taken to the hospital, where he only stayed for three days because he was out of money.

13.  The applicant was worried about his safety as he almost lost his life in the last attack. He therefore decided to leave India again and he eventually entered Hong Kong illegally from Shenzhen on 9 February 2015.

14.  The applicant was of the view that he could not seek protection from the police because they were corrupted. He also considered internal relocation not viable because he believed that Tauhid and his underlings would be able to locate him anywhere within India given that Tauhid was rich and powerful.

15.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 24 August 2015 (“the Director’s Decision”).

The Director’s Decision

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

(a) risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);

(b) 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”); and

(c) risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

17.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that (i) the low frequency of past ill-treatment by Tauhid and his underlings indicated a small future risk of harm upon his return to India [44]; (ii) state protection would be available [48]; (iii) internal relocation would be viable [46], [49]-[57] and (iv) the applicant’s case failed to meet any of the requirements under BOR 3 risk [62]-[64], Persecution risk [65]-[69] or Torture risk [70]-[71].

The Board’s Decision

18.  The applicant appealed the Director’s Decision to the Board. On 24 December 2015, he applied to withdraw his appeal. The Board therefore dismissed the applicant’s appeal and confirmed the Director’s Decision by its letter dated 31 December 2015.

DISCUSSION

19.  Before the Court, the applicant admitted the facts as stated in paragraph 18. The Board’s letter dated 31 December 2015 stated:

“Please note that your appeal/petition is therefore treated by the Board/Adjudicator as having been disposed of and finally determined. No further action will therefore be taken by the Board/Adjudicator in respect of your appeal/petition.”

20.  The question is whether the Board is correct to have made its above decision.

21.  In Re Das Purnima Rani [2019] HKCA 669, Hon Yuen JA and Lisa Wong J, 13 June 2019, the Court of Appeal held:

“41…. …Once the Board dismisses an appeal against the Director’s refusal of a non-refoulement claim upon a valid withdrawal or abandonment of the appeal by the claimant, in the sense of being the result of a deliberate and informed decision, the appeal is no longer extant and the Board becomes functus officio with no jurisdiction to take any step regarding the appeal. … …s 37V(2)(b) of the Ordinance stipulates that a torture claim rejected by the Director is finally determined when the appeal against it, if one were lodged, was disposed of. Notwithstanding the lack of determination on the merits, the dismissal of an appeal on its withdrawal nevertheless disposed of the appeal. Otherwise, not only would there be no finality in the determination of such claims, much room would be created for abuse by claimants desirous of delaying their removal from Hong Kong by making last minute withdrawals and then subsequently applying for reinstatement of the appeals. …”

22.  The applicant’s withdrawal by his letter dated 24 December 2015 was a valid withdrawal.

23.  Therefore, the applicant fails to show that there is any realistic prospect of success in his intended application for judicial review of the Board’s decision.

DISPOSITION

24.  I refuse to grant leave to the applicant to apply for leave for judicial review of the Board’s decision. Accordingly, I dismiss his application.