Mohammad Ibrahim v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

HCAL 501/2018

[2020] HKCFI 1700

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 501 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 44-year-old national of India who entered Hong Kong illegally on 25 May 2015 and was arrested by police on 27 May 2015.  After he 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 the local supporters of rival political party Trinamool Congress Party (“TMC”).  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Po-Khidderpore, Kolkata, India.  He never received any formal education, and worked early as a salesman before becoming a grocery supplier.  He also became a supporter of the political party Communist Party of India-Marxist (“CPI-M”) regularly attended its meetings and rallies as well as assisting voters during political elections.

3.One day in March 2015 during the local election for legislative councilors, while he and his fellow CPI-M supporters were setting up a stage for his party’s leaders to give a rallying speech, they were confronted by a group of TMC supporters who verbally abused them and proceeded to attack them with hockey sticks and iron bars that he was hit on his left shoulder and hurt his back when he fell, but he managed to make his escape from the scene without any further injuries.

4.The Applicant then went to the police station to report about the attack, but was told to go away, of which the Applicant suspected that they were under the influence of TMC.

5.As he was afraid of further attacks by those TMC supporters, he stayed away from home by taking shelter in a friend’s place, but when he was later informed by his wife that a group of TMC supporters had come looking for him, and when they could not find him in his home, they threatened his wife and damaged furniture in his house that she later moved to live with her parents in Patna.

6.The Applicant therefore hid in a mosque in Raja Bazar, but when he heard that the TMC supporters were still looking for him everywhere, he decided that it was no longer safe to remain in India, and so on 12 March 2015 he departed for China, and from there he later sneaked into 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 (“NCF”) on 23 July 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.     

7.By a Notice of Decision dated 4 September 2015 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 Ordinance, Cap 383 (“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 assessed the level of risk of harm from those local TMC supporters upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that there is no reliable evidence that he had been specifically targeted by those TMC supporters given his low position in CPI-M, that in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to as police had taken actions against TMC members and supporters for wrongdoings, and that reliable and objective Country of Origin Information 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 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 New Delhi or Mumbai where it would be difficult if not impossible for those local TMC supporters to locate him.

9.By a Notice of Further Decision dated 17 October 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”).

10.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 17 September 2015, and for which he attended an oral hearing on 19 April 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 21 March 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.In its decision the Board found that the Applicant’s claim of fear of harm from those local TMC supporters speculative and conflicting, and that in any event with state protection as well as reasonable relocation available for him to move safely within India but away from TMC stronghold such as West Bengal to other areas such as Patna where his wife had moved and stayed without any incidents that his claim for non-refoulement protection failed on all applicable grounds.      

12.On 28 March 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 the following grounds for his intended challenge:

(1) that the Board determined his case unfairly;

(2) that the Board never read or interpreted its decision to him as he was illiterate and unrepresented;

(3) that the documents in the hearing bundle provided to him for his appeal was also never read or translated to him to enable him to better prepare for his appeal; and

(4) that he never received the letter from the director inviting him to submit additional facts for his BOR 2 claim and it was therefore procedurally unfair to reject his claim.  

13.These are however mainly just broad and vague assertions of the Applicant containing several 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 determine his claim unfairly, while the argument that the Board’s decision was never read or interpreted to him that even if true cannot be accepted as a valid ground to challenge the finding of the Board.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant. As such I do not find any of them reasonably arguable for his intended challenge.

14.As for his complaint under Ground (3) of not being read or translated of those documents in his hearing bundle for his appeal before the Board, I note that most of these documents such as his NCF and the Director’s decisions should be well familiar to him as they had earlier already been provided to him when he still had legal representation, while his NCF was prepared on his own instructions, and that during his oral hearing before the Board when he was assisted by an interpreter, he never raised any such issue or requested for further time to better prepare for his appeal.  In the circumstances I do not find any merits in this complaint of the Applicant.

15.Regarding his assertion under his Ground (4) that he had never received any invitation from the Director to submit additional facts relevant to his BOR 2 claim, he never produced any evidence other than just a bare assertion, but even if indeed that was the case, again he never raised the issue before the Board during his appeal hearing.  Even in his present application now before me, he did not provide any additional facts which may be relevant to his BOR 2 claim which he claims to have been unable to do before the Director or the Board.  As such and given the fact even on his own case that there is simply no room for engaging the BOR 2 ground in his claim, I do not find this ground reasonably arguable for his intended challenge either.    

16.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.

17.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 27^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