Case Document

100%Judiciary

HCAL 273/2018

[2020] HKCFI 1295

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 273 of 2018

BETWEEN
	Ahmed Adil	Applicant
	and
	Michael Collier Jenkins, member of the Torture Claims Appeal Board	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 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 36-year-old national of India who arrived in Hong Kong on 13 January 2015 with permission to remain as a visitor up to 27 January 2015 when he did not depart and instead overstayed, and subsequently surrendered to the Immigration Department when he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his former business partner for failing to resolve their financial dispute. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Kolkata, India. After leaving school he worked in his uncle’s shoes business and later started his own in 2010 in partnership with Wasim, a wealthy local business man with political connections.

3.However, their business faltered after a major retailer had absconded with their products without payment that the business was subsequently closed down in 2014, for which Wasim blamed the Applicant for poor management and demanded that he repaid his losses, and when the Applicant refused, Wasim together with several of his men assaulted him by punching and kicking him until the neighbours intervened and the Applicant was taken to the hospital for medical treatment.

4.After discharge from the hospital the Applicant reported the assault to the police,but discovered that Wasim had earlier already made a false charge against him, and as a result the Applicant was arrested by the police and brought before the court the following day when he was subsequently granted bail.

5.Upon his release the Applicant received a telephone call from Wasim threatening that if he still refused to repay him for his losses, there would be more serious consequences,and when the Applicant later heard that Wasim had sent some men to his home looking for him, he therefore fled to Monpur to take shelter at his uncle’s place where he stayed for one and a half month without incidents, but later when he heard that Wasim had found out where he was hiding, he decided it was no longer safe to remain in India, and so on 12 January 2015 he departed for Hong Kong where he subsequently overstayed and raised his non-refoulement claim for which he completed a Non-refoulement Claim Form on 15 February 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.Whilst being released on recognizance pending determination of his claim, the Applicant was arrested on 7 December 2015 for smuggling goods for which he was later convicted and sent to prison for 15 months.

7.By a Notice of Decision dated 10 March 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”).

8.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 from Wasim to the Applicant upon his return to India as low due to the low intensity and frequency of past ill-treatment from him, that his problem with Wasim was a private personal monetary dispute 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 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 Mumbai or Delhi where it would be difficult if not impossible for Wasim to locate him.

9.On 24 March 2017 the Applicant filed an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 8 December 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board. On 9 February 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board found discrepancies and inconsistencies in the Applicant’s account of events occurred in India to be doubtful that he had any well-founded fear of harm from Wasim upon his return to India, and at any rate found no official involvement in their dispute that state/police protection as well as reasonable internal relocation would be available to the Applicant to safely relocate to other part of India away from any influence of Wasim that there was no justification for non-refoulement protection to be afforded to the Applicant in Hong Kong under any of the applicable grounds.

11.On 21 February 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 either in his Form or in his supporting affirmation of the same date in which he merely exhibited copies of the Board’s decision and documents from his hearing bundle for his appeal before the Board, and in the absence of any error of law or procedural unfairness in the Board’s decision being shown by the Applicant, I do not find any reasonably arguable ground for his intended challenge.

12.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim, as 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 Nupur Mst v Director of Immigration [2018] HKCA 524.

13.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 isa 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.

14.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.

15.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 July 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 July 2020 Ahmed Adil 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 July 2020 Michael Collier Jenkins, member of the Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 6662/17/3/317/IN1316 Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)