Sanwaj Alias Ahmed Shahnawaz v. Fraser Syme, Member of the Torture Claims Appeal Board

HCAL 17/2018

[2019] HKCFI 616

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 17 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 35-year-old national of India who last arrived in Hong Kong on 27 May 2015 with a passport of another name with permission to remain as a visitor up to 10 June 2015 when he did not depart and instead overstayed until 12 June 2015 when he surrendered to the Immigration Department, and subsequently made a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by members of rival political party All India Trinamool Congress Party (“TMC”).  He was released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Kolkata, West Bengal, India.  After leaving school he ran a garment shop in Kolkata, got married and has a daughter.

3.In late 2009 he started to receive threats and harassments from supporters of political party Communist Party of India (Marxist) (“CPIM”) demanding for donations and for him to join their party, and to avoid such threats he left India on 5 March 2010 for China and then Hong Kong where he overstayed and raised a torture claim which was later rejected by the Immigration Department and was repatriated to India on 25 February 2011.

4.Upon returning to Kolkata he joined CPIM to avoid any further harassments, and started a mobile phone accessories shop. However, after the 2012 election when CPIM was defeated and TMC came into power, a some of their members started to extort money from the local shop owners including the applicant by threatening him and his family with violence if they failed to pay money or make donations to their party.

5.One day in March 2013 a group of TMC members came to his shop demanding for donations, and when the applicant refused, they pushed him around and warned him that next time if he still failed to meet their demands he and his family would be killed.

6.About one week later the same group of TMC members came to his shop demanding for money, and when the applicant refused, they started to punch and kick him but the applicant managed to ward off the attack without serious injuries.

7.One day in July or August 2013 the same group of TMC members again came for money, and when the applicant refused, they hit his legs with an iron rod and slashed his face with a razor blade.  As a result the applicant was hospitalized for one week.

8.Upon his discharge from hospital the applicant reported the assault to the police, but it was treated as a private dispute and the police refused to take any action, and when the TMC members continued to come to his shop for extortion money with threats of violence, the applicant felt it was no longer safe to remain in India, and travelled to Hong Kong with a passport bearing a different name on 12 occasions between 2013 and 2015, with the last entry on 27 May 2015 when he overstayed and subsequently raised his non-refoulement claim, for which he later completed a Supplementary Claim Form on 20 April 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service. 

9.Whilst released on recognizance pending determination of his claim, the applicant was arrested by police on 5 May 2016 for conspiracy to sell goods with a forged trademark, for which he was subsequently convicted and sentenced to eight months’ imprisonment. 

10.By a Notice of Decision dated 6 June 2017 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the remaining applicable grounds including risk of his 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”).

11.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 upon his return to India as low due to the low intensity and frequency of past ill-treatment from those TMC members, that there is no reliable evidence that he had been specifically targeted by the whole of TMC, that the particular group of TMC members was merely to extort money from shop owners in his neighbourhood and that he was merely one of their victims, that in the absence of 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 such as Delhi or the Bihar State where his family now safely resides and where it would be difficult if not impossible for those TMC members to locate him.

12.On 19 June 2017 the applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 22 November 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 29 December 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

13.In its decision the Board found that the applicant was not a creditable witness as there were multiple material difficulties in his account of events in India, that his use of a fraudulent passport to defraud the Hong Kong authorities had undermined his credibility, and rejected his claims that he was ever a supporter of member of CPIM or that he had been threatened or assaulted by TMC members, and concluded that he had fabricated his claims so as to create a basis upon which to apply for non-refoulement protection and that such claim therefore failed on all applicable grounds.  

14.On 3 January 2018 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, or in his supporting affirmation of the same date in which he merely exhibited copies of the Board’s decision and of the hearing bundle for his appeal. 

15.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where 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 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 present case, the Board rejected the applicant’s claim based on its adverse findings on his credibility, and in the absence of any viable ground put forth by him or that any legal error or procedural unfairness being shown in the decision, I do not see any reasonably arguable basis to challenge the findings of the Board.  

17.Furthermore, the fact that it has been established by the Director in his 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, 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.     

18.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.

19.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 17^th day of June 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