Shaikh Sajed v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 2306/2018

[2021] HKCFI 66

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 2306 OF 2018

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 submission by the Applicant in open court.

Order by Deputy High Court Judge C P Pang:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.This is an application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) confirming the decision of the Director of Immigration (“the Director”) refusing the applicant’s claim of non-refoulement protection.

2.The applicant, born in 1976, is a national of India.  He arrived in Hong Kong on 30 May 2015 and was permitted to remain until 13 June 2015 as a visitor.  He overstayed and remained in Hong Kong unlawfully.  On 16 June 2015, he was arrested by the police and referred to the Immigration Department for investigation.  He then lodged a non-refoulement claim on 6 July 2015. He was subsequently released on recognizance.

3.The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para [10] of the decision of the Board.  Put simply, the claim was based on the fear that, if refouled, the applicant would be harmed or even killed by people of a political party, the All India Trinamool Congress (TMC).  He claims to be a member of another political party, the Communist Party of India Marxist (CPIM).  While in India, he had been approached by TMC members on several occasions from 2012-2014 when members of TMC assaulted him and threatened him that they would kill him if he did not join their party.  To avoid TMC members, he left India in December 2014 for Hong Kong.  He returned to his home in January 2015 when he was told that the threat from TMC was solved.  Upon his return to India, his party lost in the election and TMC became the ruling party in his area.  In April 2015, the was attacked by a TMC member.  On 18 May 2015, he fled India for China and later came to Hong Kong.

The Director’s decision

4.By a notice of decision dated 14 July 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for reason that the claim was not substantiated.  Having taken into account all relevant circumstances, the Director assessed there are no substantial grounds for believing that there will be any real and substantial risk that the applicant would be harmed or killed by TMC members, if refouled.  He found that state protection is available to the applicant and internal relocation is a viable option for him.  The decision covered torture risk^[1], BOR 2 risk^[2], BOR 3 risk^[3], and persecution risk^[4]. The applicant lodged an appeal/ petition to the Board against the Director’s decision.

The Board’s decision

5.The applicant attended a hearing before the Board on 21 September 2018.

6.By a decision dated 12 October 2018, the Board rejected the appeal/ petition confirming the Director’s decision.  The Board’s decision covered all applicable grounds.

7.The Board gave detailed reasons for rejecting the applicant’s claim at paragraphs [15-73] of its decision.  In a nutshell, the reasons can be summarized as follows:

(1)  the applicant appeared to have no knowledge about CPIM [16];

(2)  his claimed involvement with the CPIM was vague, evasive, unconvincing and inconsistent [29];

(3)  his account of past incident at the hearing is completely different to his accounts in the claim form and the interview, and his oral evidence at the hearing was vague, inconsistent and lack detail [44];

(4)  the applicant’s account of primary facts was not accepted by the Board which did not accept that the applicant was ever a member of the CPIM, or he was involved in its activities, or he was ever harmed or threatened in the past.  It found that he will not face a real risk of harm for any reasons upon return [15].

8.Having considered all the evidence, the Board found that the applicant would not face a real risk of harm from TMC people or anyone for any reasons, if refouled.

9.Accordingly, the Board dismissed the applicant’s appeal on all applicable grounds.

Application for leave to apply for judicial review

10.The applicant filed a Form 86 on 23 October 2018 for leave to apply for judicial review of the decision of the Board.

11.No request for oral hearing has been made.  The application is therefore considered on the papers.

12.In the Form 86 and supporting affirmation, the applicant did not set out any proper grounds for the relief sought.  He only stated that he is not satisfied with the decision of Immigration Department and that his life is still in danger in his country.

Discussion

13.The relevant principles regarding non-refoulement claims have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  In particular, the role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. Assessment of evidence, country of origin information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director.  The court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board.

14.When the applicant pursued the appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore, while the court will examine the decisions of the Director and the Board with rigorous examination and anxious scrutiny, it is unnecessary to delve into the decision of the Director.  This decision will only focus on discussing the Board’s decision.

15.In the present case, the Board in fact rejected the applicant’s appeal/ petition on the ground that it disbelieved the applicant and rejected his account of primary facts based on the major inconsistencies in his evidence, his evasiveness at the hearing and implausibility of his claims.  It did not accept that the applicant had been truthful in his claims.  On the factual findings, there would be no factual basis in support of any of the applicable grounds.

16.As explained above, the assessments of evidence and risk of harm are primarily within the province of the Board and the Director.  This court will not interfere with their decisions unless there is a public law ground for the court to do so.

17.The applicant stated no grounds of the judicial review in Form 86.  He mentioned nothing in the form or in the affirmation to suggest how the Board erred in the public law sense.

18.In the absence of any error of law or procedural unfairness being shown by the applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

19.Further, even if one gives the claimed account of events the most favourable interpretation, the alleged past ill-treatment or experience were of low intensity and frequency demonstrating no real risk of future harm.  There was no valid reason why TMC people would target the applicant who was not holding a senior position in his party and why they still wish to pursue him after so many years.

20.The evidence can hardly establish that the applicant would be at real risk of being subjected to any type of ill-treatment or proscribed harm, if refouled.

21.Both the Director and the Board engaged in a joint endeavour with the applicant and considered all relevant criteria.  They gave the applicant a reasonable opportunity to state his case and enquired into the issues appropriately.

22.There cannot be any criticism of the fairness and reasonableness of the decisions of the Director and the Board.

23.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, irrational findings, or procedural unfairness in either of them.  Nor do I see any failure on their part to apply high standards of fairness in their decisions.

24.For the reasons given, there is no prospect of success in the applicant’s intended application for judicial review.

Disposition

25.Accordingly, leave to apply for judicial review is refused.

Dated 19 January 2021

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