Ahmed Samir and Others v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

HCAL 919/2017

[2019] HKCFI 229

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 919 of 2017

BETWEEN

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;     or
	consideration of the documents and oral submissions by the Applicants in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicants:

1.The first three applicants are respectively husband, wife and their elder son who are nationals of India and arrived in Hong Kong on 8 December 2015 as a family with permission to remain as visitors for a defined period but they overstayed and subsequently surrendered to the Immigration Department, with which they lodged a non-refoulement claim on the basis that if they returned to India they would be harmed or killed by a certain member of rival political party All India Trinamool Congress (“TMC”) for refusing to pay him extortion money, and subsequently when 2^nd applicant gave birth to their second son, the 4^th applicant, a non-refoulement claim was also lodged on his behalf on the same basis.  They have all been released on recognizance pending the determination of their claim.

2.The 1^st applicant (“A1”) was born and raised in Kolkata, India.  After leaving school he traded in the garment business and eventually ran his own company, married the 2^nd applicant (“A2”) who later gave birth to the 3^rd applicant (“A3”) in Kolkata, and became a supporter of the Communist Party of India (Marxist) (“CPI(M)”) regularly attended their meetings and rallies.

3.In 2011 CPI(M) lost the election and TMC came into power, and one of its leader FH and his followers started to extort money from A1 and also took garment samples from his business office, to which A1 would always try to comply within his financial means due to FH’s influence in the local area.

4.However, one day in November 2015 when FH raised the amount of extortion money to one million rupees, A1 found it beyond his means and asked for time to raise the money, and when he thereafter went to the police for assistance, he was told to resolve the dispute privately with FH.

5.As A1 was eventually unable to come up with the extortion money, FH and his followers came to his office on 22 November 2015 and attacked him in front of his clients with cricket bats that his face and mouth were bleeding until he managed to flee from his office to a clinic for treatment, but when he subsequently made a report to the police of the assault, he was again told to settle the dispute with FH privately.

6.One evening on 22 December 2015, while A1 was out some armed men came to his home looking for him, and when they could not find him they cursed at his wife and threatened her, and when they saw A1 on his way home, they chased after him and fired at him with their pistols, but A1 managed to escape unharmed and fled to Park Circus where he hid at a friend’s place.

7.Later on the same evening A1 received a phone call from his wife that FH and his men had returned to their home looking for him, and as they could not find him, FH pointed his pistol at her and threatened that if he still could not find A1 the next day, he would kill her and her son.  Upon hearing it A1 advised his wife to pack her things and to bring their son to meet him at Park Circus.

8.Upon meeting up in Park Circus A1 and his family then travelled to Ajmer to stay at his uncle’s place, but when he heard that FH and his men had again came looking for him in his home and when they could not find him there they broke everything in the house, he and his wife felt that it was no longer safe for them to remain in Pakistan, they therefore departed with their elder son on 6 December 2015 for Hong Kong where they subsequently overstayed and lodged their non-refoulement claim, for which they completed a Non-refoulement Claim (“NCF”) on 6 June 2016 and attended screening interviews before the Immigration Department with legal representation from the Duty Lawyer Service, and upon the birth of his younger son, A1 also completed a NCF for him on 19 December 2016.

9.By a Notice of Decision dated 28 April 2017 the Director of Immigration (“the Director”) rejected the applicants’ claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of their absolute or non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

10.In his decision the Director took into account of all the relevant circumstances of the applicants’ claim and assessed the risk of harm to them upon their return to India as low due to the low intensity and frequency of past ill-treatment from FH and his men who were only after extortion money with no real intention to harm or kill them, that in the absence of official involvement that state or police protection would be available to the applicants if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in India with a large population of 1.2 billion people spread across a vast territory of more than 3.2 million square kilometers that it would not be unduly harsh for A1 as an able-bodied adult with work experience to move with his family to other areas away from their home district in large cities such as Delhi where it would be difficult if not impossible for FH and his followers to locate them.

11.On 12 May 2017 the applicants lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which they attended an oral hearing on 4 September 2017 before the Board during which A1 and A2 gave evidence and answered questions put to them by the adjudicator for the Board.  On 18 October 2017 their appeal was dismissed by the Board which also confirmed the decision of the Director.

12.In its decision the Board upon hearing both A1 and A2 in evidence found part of their claim fabricated or exaggerated with a view to overstating the risks that they would face in the event of their return to India, but accepted that A1 was subject to extortions from FH which had escalated significantly around the time of his departure for Hong Kong including the assault and threats from FH and his men which were however localized in A1’s home district, hence it would be reasonable in all the circumstances for A1 as a relatively young man with considerable business experience to relocate with his family to other parts of India such as Ajmer or Delhi where they would not be at risk of any threats of serious or significant harm from FH or his men.

13.On 21 November 2017 the applicants filed their Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in it they put forward the following grounds for their intended challenge:

(1)  that the Board had unlawfully fettered its discretion by refusing their appeal on the grounds that they did not satisfy the requirement;

(2)  that the adjudicator acted in a procedurally unfair manner in dealing with their appeal;

(3)  that the Board’s decisions to refuse their appeal were unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(4)  that the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5)  that it was procedurally unfair or unreasonable to give them the hearing bundle only shortly before the appeal hearing with all the documents in English without translation that there was insufficient time for them to prepare for their appeal;

(6)  that the Director and the adjudicator misdirected on the law by failing to consider and assess with due diligence of their claims; and

(7)  that the Director and the adjudicator failed to take into account relevant COI or cherry-picked the facts in their consideration of their claim.  

14.These are however mostly just broad and vague assertions of the applicants containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the Board had erred in their decisions, or in what way did they fetter their discretions, or in what way were their decisions unfair or unreasonable in the public law sense, or how they failed to take into account of relevant COI or being selective or improperly rely on irrelevant COI or cherry-picked the facts in the consideration of their claim.  None of these assertions were elaborated or presented with any particulars or specifics by the applicants, nor do I find any basis or merit in any of them.

15.The only complaint which the applicants appeared to have made with any elaboration was about the hearing bundle being provided to them only a few days before their appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given them insufficient time to prepare for their appeal.

16.Even if it is true that the hearing bundle indeed came to them late as alleged, and the applicants never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including their NCF, records of their screening interviews and the Director’s decision should be well familiar to both A1 and A2 as they had earlier all being already made available to them when they still had legal representation, whilst their NCF were completed on their own instructions with legal assistance, and that at their oral hearing neither A1 nor A2 raised any issue or requested the adjudicator for further time to enable them to better prepare for their appeal.  Accordingly I do not find anything amiss arising from the hearing bundle for the applicants in their appeal before the Board.

17.The fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the applicants’ claim is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of India, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.     

18.In the premises and having proceeded to consider the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicants’ claim.

19.For these reasons I am not satisfied that there is any prospect of success in the applicants’ intended application for judicial review, and I accordingly refuse their leave application.

Dated the 25^th day of January 2019.

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