SHAIKH AZHARUDDIN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 74/2022

[2022] HKCFI 1291

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 74 of 2022

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;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 4 January 2022 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”) and the Decision of the Director of Immigration dated 29 June 2021, which has been dealt with by the Board’s Decision and is therefore not amenable to judicial review. See  Re: Moshsin Ali [2018] HKCA 549, §45[1].

2.  The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), a hearing was fixed for him. However, due to COVID-19 pandemic, the government discouraged social gathering and the court had to suspend hearings for a period of time. Since the applicant had submitted lengthy written submissions, the court sent a letter to the applicant and invited him to make further submissions in order to dispense with hearing in court. The letter further said that if he takes the view that it is not possible to make written submissions in place of oral hearing, he should so inform the court, stating his reasons why this is the case and if he does not respond to the letter within 7 days, the court will proceed to consider his application on paper. The written decision will be sent to the applicant in due course.

3.  The applicant did not respond to the court’s letter.

4.  Under Order 53 rule 3(3) of the RHC, it provides:

“The judge may determine the application for leave without a hearing, unless a hearing is requested in the notice of application….”

Under Order 1A rule 1(b) of the RHC, the underlying objectives of the rules are to ensure that a case is dealt with as expeditiously as is reasonably practicable. Under Order 1B rule 1(l), the court has the power to take steps to make any order for the purpose of managing the case and furthering the underlying objectives set out in Order 1A. I consider that the court has the power to dispense with open hearing of the applicant’s application without doing injustice to his application. I therefore proceed to consider his application on paper.

5.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

The applicant

6.  The applicant is a national of India.  He entered Hong Kong as a visitor on 4 August 2017 and was permitted to stay until 18 August 2017. He overstayed and was arrested by police on 29 August 2020. He lodged non-refoulement claim on 2 September 2020.

7.  According to the applicant, he was a supporter of a political party named Indian National Congress, following his father’s belief. The All India Trinamool Congress (“TMC”) and Bharatiya Janata Party (“BJP”) were rival parties. Since 2008s, the TMC and BJP asked him to join them in order to tout votes for them. He refused. They warned him that he would have a lot of troubles. In 2013 or 2014, he was first attacked by the TMC and BJP members with wooden sticks. The neighbours were alerted and they fled. In 2015, he relocated to Delhi where he stayed for two and a half months. Nothing happened. His family told him that his enemies were still looking for him. They threatened to kill him. In 2016, he was attacked and humiliated by his enemies on the street. They hit him with bare hands. He reported to police, which took no action. In 2017, his enemies threatened to kill him if he did not render assistance to them by touting votes for them. Again, he reported to police, which took no action. On 3 August 2017, he fled India for Hong Kong. Details of his story are set out in paragraph 6 of the Director’s Decision described below.

The Director’s Decision

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

a.     risk of torture under Part VII C 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”).

9.  By a Notice of Decision dated 29 June 2021 (“the Director’s Decision”), the Director refused the applicant’s claim. The Director found that the level of risk of harm upon his return was assessed to be low for the reasons: (i) the low intensity and frequency of past ill-treatment was indicative of a low future risk of harm [11.1]; his enemies did not show any intention of killing him [11.2]; (iii) there was no evidence to show that his enemies were capable of locating him nationwide in India [11.3]; (iv) state protection was available to him [12-16]; and (v) internal relocation was an option open to him [17-19].

The Board’s Decision

10.  The applicant appealed the Director’s Decision to the Board.  On 3 December 2021, the Board conducted an oral hearing for his appeal.

11.  The Board made enquiries into the facts of the applicant’s case and found that his evidence in his notice of claim form, his interviews with the immigration officer and his evidence in the hearing contained discrepancies and conflicting, which were too glaring to be ignored. They exposed the lack of credibility of his evidence [18 & 19]. The Board finally came to the conclusion that the applicant was trying to avoid his enemies because he had hurt one of them. He was running from being pursued by the police in India. He should return to India to face lawful sanction [57]. The Board dismissed his appeal.   

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

12.  The applicant has filed Form 86 dated 20 January 2022 for leave to apply for judicial review of the Board’s Decision.

13.  In his affirmation in support of his application, the applicant enclosed the Board’s Decision. He has attached to Form 86 his grounds, which I shall summarize below.

(1)     The decisions of the Director and the Board are unreasonable and unfair because they did not address his right to life.

(2)     The Director’s Decision has failed to consider the issue of state acquiescence. The state has failed to provide reasonable protection for him.

(3)     The Board was unfair to have too much reliance on the Country of Origin Information without taking into account his personal background and experience.

(4)     The adjudicator was unfair to require to respond to questions that he was not able to respond and she failed to consider the nexus between the political parties and official corruption in India.

(5)     The Director failed to consider the corruption and incompetency of the administration of India and he had failed to attain the high standards of fairness in his assessment of his case.

(6)     The Board’s Decision is irrational.

DISCUSSION

14.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its 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 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

15.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

16.  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.”

17.  Those grounds above are not valid reasons to challenge the Board’s Decision. Grounds (1),(2), (3), (5) and (6) are his personal opinion or comments without any evidence in support of them. Ground (5) is simply unreasonable. The adjudicator is entitled to test his evidence at the hearing.

18.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

19.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

20.  I refuse to grant leave for the applicant to apply for judicial review of the Board’s 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