Mohammad Sharif v. Torture Claims Appeal Board

HCAL 1044/2018

[2021] HKCFI 1424

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1044 of 2018

BETWEEN

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 the Applicant 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 25 May 2007 with permission to remain as a visitor up to 8 June 2007 when he did not depart and instead overstayed, and on 24 September 2007 he surrendered to the Immigration Department and raised a torture claim on the basis that if he returned to India he would be harmed or killed by his uncle’s sons over a land dispute in his home district, and after his torture claim was rejected, he then sought non-refoulement protection on the same basis. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Shikohabad, Sudamoi Puri, India. After leaving school he worked as a farmer in his home village.

3.His grandfather used to own some land in Village Chirhuli, Sirsa Ganj, Uttar Pradesh which was inherited by his father and uncle in equal share after his grandfather’s death, but later his uncle sold his share and settled in the city of Itawa where he became politically influential.

4.One day in May 2007 his uncle came to the Applicant’s home to demand that his father’s land be transferred to his uncle, and when the Applicant refused, his uncle and his sons proceeded to beat him until he lost consciousness before they left.

5.About a week later the Applicant heard that his uncle had been murdered, and his uncle’s sons started to suspect that the Applicant had taken revenge against their father, and one evening they came to his home and fired gun shots at his house, threatening to kill him.

6.As a result the Applicant became fearful for his life, and therefore fled to Mumbai, and from there he departed India on 24 May 2007 for Hong Kong where he subsequently overstayed and raised his torture claim, and after his torture claim was rejected, he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 27 January 2015 and attended screening interviews before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

7.By a Notice of Decision dated 17 April 2015 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then remaining applicable grounds other than torture risk including 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 all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his uncle’s sons upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that in any event it was a private land dispute between them 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”) shows 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 parts of India away from his home district in large cities such as Mumbai where he had stayed before without incidents and where it would be difficult if not impossible for his uncle’s sons to locate him.

9.By a Notice of Further Decision dated 27 June 2017 the Director again rejected the Applicant’s claim upon receiving and considering the additional information from him 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 (“Board”) against the earlier decision of the Director, the notice of which was filed on 28 April 2015, and for which he attended an oral hearing on 2 February 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 29 May 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.In its decision the Board doubted the Applicant’s claim in the absence of any reliable evidence in support of his bare assertions, and found in any event that with reasonable internal relocation available for him to safely move to other parts of India without any risk of being located by his uncle’s sons that his claim for non-refoulement protection failed on all applicable grounds.

12.On 8 June 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 in his Form, and in his supporting affirmation of the same date he merely stated that he rejects the decision as it disregarded his dangerous situation in his home country but without providing any details or particulars or elaboration as to how it did so, nor did he put forward any other proper ground for his intended challenge. As such and in the absence of any error of law or irrationality 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 for his intended challenge.

13.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.

14.In the Applicant’s case, 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 parts 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.     

15.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.

16.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 20^th day of May 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