Razi Ahmad v. Torture Claims Appeal Board

HCAL 1482/2018

[2020] HKCFI 182

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1482 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 27-year-old national of India who entered Hong Kong illegally on 28 August 2015 and surrendered to the Immigration Department on 1 September 2015, where he subsequently raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by a customer over a business dispute and/or by the police over a false criminal charge against him by the said customer.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Kabitirtha Sarani, Kidderpore, Kolkata, India.  After leaving school he worked in a business importing electronic goods from China and Hong Kong for sale to his customers in his home district.

3.In April 2015 one of his customers, Javed, paid him US$70,000 for certain electronic goods from Hong Kong.  The Applicant therefore purchased the goods through a middle man and travelled to Hong Kong to collect the goods, but when he was repeatedly refused entry into Hong Kong, and could no longer contact his middle man over the purchase, he was therefore unable to deliver the goods to Javed.

4.As a result Javed demanded for a full refund of the US$70,000, but when the Applicant was unable to do so, Javed threatened him with violence, and had on several occasions together with some other men assaulted the Applicant causing him superficial injuries, of which the Applicant did report to the police but no concrete action appeared to have been taken by them.

5.On another day in August 2015 while the Applicant was driving on the road, his car was struck by Javed’s men and crashed, causing injuries to the Applicant who was then taken to the hospital for treatments.

6.After his discharge from the hospital, the Applicant heard that Javed had made a false charge to the police that the Applicant had killed some pedestrian in that car crash.  Fearing that he would be prosecuted by the police as a result, the Applicant therefore departed India on 23 August 2015 for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 23 September 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.     

7.By a Notice of Decision dated 15 November 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 his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“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”).

8.In his decision the Director took into account of 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 Javed or that he would be a target of the police upon his return to India due to the low intensity and frequency of past ill-treatment from them, that there is no reliable evidence that he was being pursued by the police over any false charge against him, that his dispute with Javed was a private business matter 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 working experience to move to other part of India away from his home district in large cities such as Delhi where it would be difficult if not impossible for Javed to locate him.

9.On 28 November 2016 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 4 May 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 3 July 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board found the Applicant’s evidence confused and inconsistent in particularly as to how he ordered and paid for the goods and also contradicted the initial information stated in his NCF and given to the Immigration Department with those adduced at his appeal hearing that the Board concluded that he had fabricated his claim and found that his claim for non-refoulement protection failed on all applicable grounds.    

11.On 27 July 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1)      procedural unfairness in that the Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the ground that they did not satisfy the requirement;

(2)      procedural unfairness in that the adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

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

(4)      procedural unfairness in 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 were simply hearsay or outdated which led to groundless speculations that it would be safe for the Applicant to return to his country of origin; and

(6)      that the hearing bundle was given to the Applicant just six days before his appeal hearing with the majority of the documents in English thereby given him insufficient time to prepare for his appeal due to his limited skill in English with no legal representation and inability to find any interpreter which he could afford to assist him for his appeal.

12.These are however mostly 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 Board or the adjudicator had erred in the decision, or in what way did the Board unlawfully fetter its discretion or act in a procedurally unfair manner or that its decision was unreasonable or irrational, or what COI which the Board had relied on were unofficially recognized or were hearsay or outdated.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge.

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

14.The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided to him only a few 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 or to get translation assistance with those documents.

15.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 decision should be well familiar to the Applicant as they had earlier all been 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.

16.The fact is that the Applicant’s claim was rejected by the Board essentially on its adverse finding on his credibility for the thorough and detailed analysis set out in 42 – 51 of its decision with the benefit of hearing his oral evidence and his answers to questions raised of his claim during his appeal hearing, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

17.Furthermore, as 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 13^th day of July 2020. 

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