Hossain Istekhar v. Torture Claims Appeal Board

HCAL 214/2019

[2021] HKCFI 1617

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 214 of 2019

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:

1.  the application for leave to apply for Judicial Review be reinstated; and

2.  leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 34-year-old national of India who last arrived in Hong Kong on 20 September 2014 with permission to remain as a visitor up to 4 October 2014 when he did not depart and was arrested by the police on 2 April 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 he would be harmed or killed by his father’s creditor over his father’s debt. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Khidderpore, Kolkata, India. After leaving school he remained living with his parents and his sister in his home district, and worked as a driver to make his living,

3.In 2012 his father passed away, and 5 months later his father’s creditor demanded the Applicant to repay his father’s debt, and when the Applicant was unable to do so, he was beaten by men sent by the creditor, and to avoid further threats and assaults, the Applicant left India to work overseas until 2014 when he returned to his home village.

4.One day in late 2014 the Applicant was ambushed by men sent by his father’s creditor who beat him with iron rods that afterwards he had to receive medical treatment for his left leg. Thereafter the Applicant fled to another town in Kolkata, and on 19 September 2014 he departed India for Hong Kong where he subsequently overstayed, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 21 March 2018 and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.Whilst released on recognizance pending the determination of his claim, the Applicant was again arrested on 30 October 2017 for undertaking unauthorized employment for which he was subsequently convicted and sentenced to prison for 15 months.        

6.By a Notice of Decision dated 29 March 2018 the Director of Immigration (“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 Ordinance, Cap 383 (“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”).

7.In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and found inconsistencies and discrepancies in his account of events that occurred in India prior to his departure that it doubted the credibility of his claim, that in any event the level of risk of harm from his father’s creditor or his men upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that his problem with his father’s creditor was a private 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 (“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 Delhi where it would be difficult if not impossible for his father’s creditor to locate him.

8.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 20 December 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 18 January 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found the Applicant’s evidence as to his claim vague, lacking in details, inconsistent and contradictory that he was not considered as a reliable witness and which undermined the reliability of his claim, and that in any event in the absence of any evidence of state or official involvement that state/police protection would be available to the Applicant upon his return to India as well as reasonable internal relocation for him to move safely to other areas away from his home district that his claim for non-refoulement protection failed on all applicable grounds.    

10.On 23 January 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1) Procedural unfairness in that the Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirements;

(2) Procedural unfairness in that the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(3) Procedural unfairness in the Board’s decisions to refuse the Applicant’s appeal which were unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(4) Procedural unfairness in that the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5) That the Applicant was not given an opportunity to put forward his submissions in an oral hearing nor was he invited to submit written submissions for his appeal before the Board; and

(6) that the Board had significantly relied on the sources of news which are not officially recognized or are simply hearsay or outdated and the lack of credible source of information had resulted in its making groundless speculations that it would be safe for him to return to his country of origin.  

11.However, before his application could be dealt with by the court, the Applicant on 6 January 2020 filed an affirmation requesting to withdraw his application as he wanted to return to his home country. Accordingly, on 13 January 2020 this Court acceded to his request and allowed him to withdraw his application.

12.On 9 October 2020 the Applicant issued a summons to ask that his leave application be restored for hearing as his problem has not been solved, and at the hearing of his summons he further explained that when he earlier requested to withdraw his application, he thought that his problem back home had been solved when his family had made attempts to repay his father’s debt to the creditor, and that he was ready to leave Hong Kong for home, but then the Covid-19 pandemic occurred that there were no flights out, and later when he heard that his family’s attempts to resolve the dispute with the creditor fell through, he therefore sought to re-open his application.       

13.Given the fact that his application was withdrawn without adjudication and the seriousness of his claim, I acceded to his request and restored his leave application for consideration as to his proposed grounds for his intended challenge of the Board’s decision as set out above.

14.They are however all 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 unlawfully fetter its discretion or that the Adjudicator had acted procedurally unfair manner or that the Board’s decision was unreasonable or irrational, or what sources of information relied on by the Board were not officially recognized or hearsay or outdated. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, while his complaint that he was not given any opportunity to make his representations or submissions in an oral hearing before the Board is plainly incorrect, as an oral hearing was clearly held on 20 December 2018 before the Board as noted above and as recorded in paragraph 21 of the Board’s decision. As such and for the reasons given, I do not find any of the Applicant’s proposed grounds reasonably arguable for his intended challenge.

15.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.

16.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 the Applicant’s 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.

17.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 or irrationality 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.

18.Furthermore, the Applicant on 29 March 2021 filed an affirmation to request to withdraw his application as his problem in his home country “is finished” and that he wants to return to India as soon as possible.  

19.In the premises, and as I am not satisfied for the reasons given that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation that the basis of his claim no longer exists, I accede to his request and accordingly dismiss his leave application.

Dated the 7^th day of June 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