Arafin Mohammed Azadul v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 431/2018

[2019] HKCFI 408

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 431 of 2018

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 the Applicant being present / absent in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The applicant is a 34-year-old national of India who last arrived in Hong Kong on 3 April 2006 with permission to remain as a visitor up to 17 April 2006 when he did not depart and instead overstayed and was only arrested by police on 12 October 2013.  After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his creditor for failing to repay his debts.  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Kolkata, West Bengal, India where his mother and siblings still live.  After leaving school he worked as a tailor, and in 2004 he started his own business selling mobile phones and accessories imported from Hong Kong.

3.In order to expand his business, the applicant borrowed 600,000 Indian Rupees from SR, an influential and wealthy business man and a member of the political party Congress Party (“CP”) repayable by monthly installments.

4.On 3 April 2006 the applicant came to Hong Kong with 900,000 Indian Rupees for purchasing goods for his business, but when his money were stolen in the guesthouse where he was staying, he did not report the matter to the police or seeking any help from the Indian Consulate, and instead overstayed in Hong Kong because he feared that if he returned to India, he would be harmed by SR for failing to repay his loan.

5.During his stay in Hong Kong he had been informed by his family that SR and his men were looking for him in India with threats to kill him, that SR had filed court cases against him and his family in India, and had even assaulted some of his siblings for refusing to disclose the applicant’s whereabouts, hence upon his arrest in Hong Kong the applicant raised a non-refoulement claim for protection, for which he subsequently completed a Non- refoulement Claim Form on 24 August 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.By a Notice of Decision dated 15 July 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“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”).

7.In his decision the Director took into account all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm from SR to the applicant upon his return to India as low due to the absence of past ill-treatment from SR, that it was a private personal dispute between them without any official involvement that state or police protection would be available to the applicant 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 the applicant as an able-bodied adult with work experience to move to other part of India away from his home district in large cities such as Mumbai where it would be difficult if not impossible for SR or his men to locate him.

8.By a Notice of Further Decision dated 21 June 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

9.By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 29 July 2016, and for which he attended an oral hearing on 11 January 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 1 March 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.In its decision the Board was prepared to accept the applicant’s account of owing money to SR who had been looking for him, but found that state or police protection would be available to him from any real threats from SR, and that there are many places where the applicant can relocate in India which would further reduce or completely negate his chance of being harmed by SR or his men, and hence his claim failed on all applicable grounds. 

11.On 16 March 2018 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no grounds for seeking relief was given in his Form or in his supporting affirmation of the same date in which he merely stated that “I would like to review and reject the decision on my non-refoulement claim made by the immigration department.  They disregard my dangerous situation.”

12.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim, as the proper occasion for an applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in the decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Re Litoun Mounsy [2018] HKCA 537.

13.In the present case the applicant did not provide any ground of complaint against the Board’s decision or any particulars as to why it was wrong to reject his claim or dismiss his appeal, and I fail to see any reason for interfering with the Board’s evaluation of the risk of harm in his claim based on the evidence and information available before the Board.

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

15.In the premises and having considered 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 applicant’s claim.

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

Dated the 4^th day of April 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