Khan Shamim v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

Case No.HCAL 596/2018[2020] HKCFI 444

Court

High Court CFI

Date02 Jun 2020

Judge—

Case Document

100%Judiciary

HCAL 596/2018

[2020] HKCFI 444

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 596 of 2018

BETWEEN

	Khan Shamim	Applicant
	and
	Torture Claims Appeal Board / Non-Refoulement Claims Petition Office	1^st Putative Respondent
	The Director of Immigration	2^nd Putative Respondent

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 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 32-year-old national of India who arrived in Hong Kong on 31 December 2013 with permission to remain as a visitor up to 14 January 2014 when he did not depart and instead overstayed and was arrested by police on 15 January 2014. Afterhe was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his paternal uncle over a land dispute. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Ekbalpore, Kolkata, India. After leaving school he worked as a salesman and lived with his father and sister in the family house inherited from his grandfather and shared with his paternal uncle and his family.

3.However, the relationship between his father and his uncle was not good due to his uncle’s persistent attempts to get rid of his father and his family from the house so that he could have the entire property for his own which had led to many conflicts between the two families.

4.One day in 2012 his father discovered that his name in the title of the house had been deleted with his uncle being the sole registered owner after his father was earlier tricked into signing away his interest in the house, and when his father confronted his uncle about the matter, it led to a heated quarrel between them during which his uncle struck his father with a hammer causing injuries to his head that he was hospitalized.

5.After the incident his sister reported the matter to the police, but no follow-up action was taken by the police and the Applicant suspected that it was due to his uncle’s influence in his home village.

6.Upon his discharge from the hospital, his father returned to the house to recuperate,but when his uncle continued to harass his father, the Applicant confronted his uncle who however threatened to do the same to him if he did not leave the house.

7.After his uncle’s threats, the Applicant approached the village elders for assistance but to no avail, and sometimes thereafter when he ran into his uncle on the street, his uncle rebuked him for taking the matter to the village elders and threatened that his family would be thrown out of the house if he dared to do it again.

8.In December 2013 the Applicant was approached by a friend to assist in his garment business, and on 31 December 2013 he accompanied his friend to travel to Hong Kong on business, during which he received a telephone call from his sister that his uncle was planning to kill him and warned him not to return to India for his own safety, and so the Applicant overstayed in Hong Kong, and upon his arrest by the police, he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

9.By a Notice of Decision dated 22 August 2017 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 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”).

10.In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real risk of him being harmed or killed by his uncle upon his return to India due to the low intensity and frequency of past ill-treatment from him, that it was a private family 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 Delhi or Mumbai where it would be difficult if not impossible for his uncle to locate him.

11.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on14 February 2018 before the Board during which he gave evidence and answered questionsput to him by the adjudicator for the Board. On 6 April 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

12.In its decision the Board found inconsistencies and discrepancies in the Applicant’s account of his claim between those given to the Director and in his evidence given at his appeal hearing before the Board, that his evidence was evasive and confusing during his oral hearing that the Board found he was not a reliable witness and that he had not told the truth about his claim, and that in any event he can always relocate to other places in India to avoid any threats from his uncle who in any event only wanted to get the Applicant out of his house in the home village that the Applicant’s claim for non-refoulement protection failed on all applicable grounds.

13.On 10 April 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he put forward various grounds for his intended challenge summarized as follows:

(1) that the adjudicator was prejudicial towards him for attacking his credibility despite the fact that he had told the truth and answered all the questions correctly during his oral hearing before the Board;

(2) that as he does not speak English he has no way of finding out whether the interpreter had properly or correctly translated everything he said during his oral hearing before the Board;

(3) that the COI relied on by the Director and the adjudicator did not show a true reflection of the actual situation in India and that he would be deprived of practicing his own religion freely in his home country; and

(4) that the court should carefully reconsider his case.

14.These are however all just 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 Director or the adjudicator had erred in their decisions, or how was the adjudicator being prejudicial towards him during his appeal hearing before the Board, or in what way that the interpreter may have translated his case or evidence wrongly to the Board during his appeal hearing, or how did the Director or the adjudicator fail to take proper account of relevant COI in assessing the true situations in India in their determination of his claim. 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, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the 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 Nupur Mst v Director of Immigration [2018] HKCA 524.

16.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 24 – 40 of its decision and with the benefit of hearing him in his oral evidence and in his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Director or the Board or in their decisionsbeing clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for him to challenge the findings of the Director or the Board.

17.Furthermore, 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 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.

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 2^nd day of June 2020.

(NG Hang-yin)
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

Notes for the Applicant: If leave has been granted, the Applicant or his 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 2^nd June 2020 Khan Shamim 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 2^nd June 2020 Torture Claims Appeal Board / Non-Refoulement Claims Petition Office 1^st Putative Respondent’s ref. no.: USM 8347/17/9/19/IN1589 The Director of Immigration 2^nd Putative Respondent’s ref. no.: QA T/C 1695/17 (formerly RBCZ 1239/14) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)