Case Document

100%Judiciary

HCAL 688/2018

[2020] HKCFI 2185

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 688 of 2018

BETWEEN

	Md Sohil	Applicant
	and
	Torture Claims Appeal Board	1^st Putative Respondent
	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 oral submissions by (counsel for) the Applicant in open court / 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 27-year-old national of India who arrived in Hong Kong on 5 April 2014 with permission to remain as a visitor up to 19 April 2014 when he did not depart and instead overstayed and was arrested by police on 28 April 2014. 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 a man for having overheard his conversation of his involvement in a murder. The Applicant was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Kolkata, West Bengal, India. One day in March 2014 while he was having tea with a friend in a tea shop, he overheard a neighbor Sikandar discussing with someone of how to dispose of the bodies of a woman and her two daughters recently found to have disappeared in the neighbourhood.

3.The Applicant did not report the matter to the police as Sikandar was an influential man in the neighbourhood with political connections, and after Sikandar and his friends were arrested by the police and were subsequently sent to prison for the murder, but when the Applicant heard that his men were looking for him for revenge, he became fearful for his life and therefore departed India on 5 April 2014 for Hong Kong where he subsequently overstayed, and upon his arrest by the police he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 24 August 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

4.By a Notice of Decision dated 16 October 2015 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 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”).

5.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 Sikandar or his men upon his return to India as low due to the absence of any past ill-treatment from them, 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 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 young man 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 Sikandar or his men to locate him.

6.By a Notice of Further Decision dated 25 January 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”).

7.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 27 October 2015, and for which he attended an oral hearing on 3 March 2017 before the Board during which he however declined to give any evidence or to answer questions from the adjudicator for the Board. On 12 April 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

8.In its decision the Board found the Applicant’s stated account of events regarding threats from Sikandar in India conflicting, inconsistent and incredible in the absence of any evidence or clarification from him during his appeal hearing that it rejected his claim of feared ill-treatment as unlikely to materialize, and that in any event with state/police protection as well as reasonable internal relocation within India available for him to move safely to other area away from his home district without any risk of being located by Sikandar or his men that his claim for non-refoulement protection failed on all applicable grounds.

9.On 20 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, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely repeated his claim that if he returned to India he would be killed by his enemy, and complained that it was not fair that the Board’s decision was never explained or translated to him but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application.
10.Even if it is true that the Board’s decision had never been interpreted to him, and I do not accept that it is as I note that his present application and supporting affirmation are both in English and hence he would have had legal or interpretation assistance regarding the Board’s decision, that complaint in itself cannot form any valid or proper ground for judicial review of the findings of the Board in rejecting or dismissing his claim, nor is it reasonably arguable for his intended challenge.

11.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.

12.In the Applicant’s case, 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 him, I do not find any reasonably arguable basis to challenge the finding of the Board. 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 his 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.

13.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.

14.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 3^rd day of September 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 3^rd September 2020 Md Sohil 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 3^rd September 2020 Torture Claims Appeal Board 1^st Putative Respondent’s ref. no.: USM 2468/15/10/137/IN517 Director of Immigration 2^nd Putative Respondent’s ref. no.: RBCZ 9000784/16 (formerly RBCZ 1701/14) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)