Ateeq Pasha Abdul Gaffar v. Torture Claims Appeal Board

HCAL 31/2018

[2019] HKCFI 812

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 31 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 oral submissions by the Applicant 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 44-year-old national of India who arrived in Hong Kong on 17 June 2015 with permission to remain as a visitor up to 1 July 2015 when he did not depart and instead overstayed and subsequently surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by certain political leader who blamed him for causing him to lose money on his horse races when he was a jockey.  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised as a Muslim in Karnataka, India where his wife and children still reside.  After leaving school he worked as a jockey and track rider in India, United Arab Emirates and Malaysia.

3.Between 2010 and 2015 while he was working for the Bangalore Turf Club, he became acquainted with Ramish who was a leader of the ruling political party Bharatiya Janata Party (“BJP”) and frequently bet on horse racings.

4.One day on 23 April 2015 Ramish approached the applicant for tips on certain upcoming horse races in Malaysia as he had racing experience there in the past.  As Ramish was a friend and an important political leader, the applicant therefore obliged and gave him certain tips for the race.

5.Several days later Ramish came with some men to find the applicant at the Bangalore Racecourse, and told him that he had lost 2.5 million Indian Rupees on the race as a result of his bad tips, and demanded that the applicant compensated his loss by twisting his hand and fingers to force him to sign a promissory document in which he admitted to owe Ramish the 2.5 million Indian rupees to be repaid within 15 days, and warned him not to go to the police as no authorities would help a Muslim like him in India where the majority of the population is Hindus.

6.After Ramish left the applicant went to the local police to report about the incident, but when they learnt that Ramish was involved, they just told him to leave as Ramish was an important and influential man in India.

7.Fearing for his safety and as the police were not willing to help, the applicant therefore decided to leave India, which he did on 13 May 2015 when he flew to Malaysia for protection, but when he found there was no mechanism to apply for non-refoulement protection, he left for Macau on 13 June 2015, and from there he travelled to Hong Kong on 17 June 2015 where he overstayed and raised his non-refoulement claim, for which he later completed a Non-refoulement Claim Form (“NCF”) on 26 April 2016 and attended screening interview before the Immigration department with legal representation from the Duty Lawyer Service.

8.By a Notice of Decision dated 19 August 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim on all then 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”).

9.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 Ramish to the applicant upon his return to India as low due to the absence or low intensity and frequency of past ill-treatment from Ramish, that it was a private monetary dispute between the two of 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 New Delhi where it would be difficult if not impossible for Ramish to locate him.

10.By a Notice of Further Decision dated 1 August 2017 the Director again rejected the applicant’s claim upon receiving and considering additional facts from him 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”).

11.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 26 August 2016, and for which he attended an oral hearing on 30 August 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 20 October 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

12.In its decision the Board accepted that the applicant had worked in the horse racing industry in India and elsewhere but rejected his claim of being threatened by Ramish whether in connection with money he claimed to owe him or for any other reason including his religion, and found those documents produced by him including the promissory documents either had serious problem with authenticity or that they were not genuine and were fabricated by or for him for the purpose of his claim, and concluded on the claim and evidence before it that it was not satisfied that the applicant faces any real prospect of being harmed in India for the reasons claimed upon his return to India.     

13.On 8 January 2018 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his subsequent affirmation of 21 June 2018 he put forward the following grounds for his intended challenge:

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

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

(3)  that the Board’s decision to refuse his appeal was 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 the Board had significantly relied on the source of news not officially recognized or is simply hearsay or outdated leading to groundless speculation that it would be safe for the applicant to return to his country of origin; and

(6)  that the hearing was unfair to the applicant due to lack of care by the Board to make appropriate arrangements in relation to the hearing bundle.  

14.These are however all very broad and vague assertions of the applicant 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 Board or the adjudicator had erred in the decision, or how did the Board unlawfully fetter its discretion, or in what way was its decision unreasonable or irrational in the public law sense, or how did the adjudicator fail to take into account of relevant COI or in what way were the information outdated or not officially recognized.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

15.As has been repeatedly emphasized by the Court of Appeal, 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 their 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.

16.In the applicant’s case, the Board rejected his claim based on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in §§45 – 115 of its decision after having had the benefit of hearing him in evidence and in his answers to questions put to him at his appeal hearing, and in the absence of any legal error or procedural unfairness being clearly shown by the applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.  

17.The only other complaint which the applicant appeared to have made with any elaboration was about the hearing bundle being provided to him only eight days before his 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 him insufficient time to prepare for his appeal.

18.Even if it is true that the hearing bundle indeed came to him late as alleged, and the applicant 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 his NCF, records of his screening interviews and the Director’s decisions should be well familiar to the applicant as they had earlier all been already made available to him when he still had legal representation, whilst his NCF was completed on his own instructions with legal assistance, and that at his oral hearing he never raised any issue or requested the adjudicator for further time to enable him to better prepare for his appeal. Accordingly I do not find anything amiss arising from the hearing bundle for the applicant in his appeal before the Board.

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

20.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.

21.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 24^th day of May 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