HCAL 1743/2018
[2020] HKCFI 1214
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1743 of 2018
BETWEEN
| Hossain Akhtar | Applicant |
| and | |
| Torture Claims Appeal Board/
Non-refoulement Claims Petition Office | Putative Respondent |
| and | |
| Director of Immigration | Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge K.W. Lung:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
THE APPLICATION
1. This is the applicant’s application for leave to apply for judicial review of the Decision dated 17 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).
2. The applicant is not legally represented and he did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court, by letter, invited the applicant to appear before it in order to explain the above to them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant attended the hearing on 23 January 2020.
3. Leave was granted to the applicant to amend Form 86 by deleting the applicant and replacing him with Director of Immigration (“the Director”) as interested party.
The applicant
4. The applicant is an Indian national. He came to Hong Kong on 20 October 2014 as a visitor. He overstayed and was arrested by police on 17 December 2014. He was referred to the Immigration Department on 18 December 2014. He lodged a non‑refoulement claim on the same day.
5. He claimed that if refouled, he would be harmed or even killed by his creditor, a Shia Muslim called Aftab (“SMA”) because he was unable to repay a debt of one million Rupees to SMA, who was a member of the Trinamool Congress Party.
6. He said that at the material time, he was running a business of importing garments from Bangladesh to be resold in Kolkata. Shortly after the drawdown of the loan from SMA, he lost his goods which fell into a river. He was therefore unable to repay the loan to SMA, who sent 5 unknown men to his home where they beat him up with bare hands and kicked him. He did not sustain injury. He reported to police. The police officer sent him away upon hearing Aftab. He went to live with his cousin for four and a half months. Nothing happened. He then returned to Kolkata, his home town. There he was approached by two men, who demanded repayment of the loan. He was unable to repay thereupon they poured boiling water on him, scalding his back and shoulder. He went to have medical treatment for three weeks. He then hid himself in a shrine in Uttar Pradesh State. His friend advised him to go to Hong Kong. He took his advice and came to Hong Kong in October 2014.
The Director’s Decisions
7. The Director considered his application in relation to the following risks:
a. risk of torture under Part VIIC 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”).
8. By Notice of Decision dated 17 August 2015, the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that the level of risk as he claimed was low if he returned to India [13]; that state protection was available to him [26] and internal relocation was an option open to him [30]. By Notice of Further Decision dated 21 June 2017, the Director held that his claim under BOR2 risk was not established.
The Board’s Decision
9. The applicant appealed to the Board against the Director’s Decisions. He attended a hearing before the Adjudicator on 28 June 2018.
10. By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decisions.
11. The Board considered the applicant’s evidence and found that it did not believe that SMA would still be interested in finding him or that SMA would kill him as that would not yield any result; that there were other places where he could live safely [19]; that it did not believe his evidence because he did not ask for protection immediately he arrived in Hong Kong and he had ample opportunities to do so and yet he was unable to give reasonable explanation acceptable to the Board [32-35].
Application for leave to apply for judicial review
12. The applicant filed Form 86 on 27 August 2018 for leave to apply for judicial review of the Board’s Decision.
13. In his affirmation in support of his application, he did not set out any grounds in support of his application. He did not say what error the Board had committed in coming to its decision. He simply said that he did not want to go back to India because his life was still in danger.
DISCUSSION
14. The Applicant appeared before me. He confirmed that he was treated fairly when he appeared before the immigration officer and the Adjudicator of the Board. The duty lawyer had explained the Director’s Decision to him and the interpreter of the Board had explained the Board’s Decision to him. He had no comments on the Board’s findings.
15. In Nupur Mst v Director of Immigration[2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.
16. There is nothing to show that the Board had committed any error in its application of the law to his case or in coming to its conclusion on the facts of the case.
17. The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.
CONCLUSION
18. I therefore refuse to grant leave to the applicant to apply for judicial review. Accordingly, I dismiss his application.
Dated the 18th day of June 2020
| | (Mike Mak) |
| | for Registrar, High Court |
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
Notesfor the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must: | | | | |
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). | | Sent to the Applicant
on 18/6/2020
Hossain Akhtar
Applicant’s ref. no:
Nil. | | Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 18/6/2020
Torture Claims Appeal Board/ Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 2136/15/8/157/IN443
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 208/15 & RBCZ 9001981/17 (Formerly RBCZ/30/15)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1