Moinuddin v. Torture Claims Appeal Board

HCAL 138/2019

[2021] HKCFI 3573

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 138 of 2019

____________________

____________________

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:

1.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 28 June 2018 refused; and

2.  the application for leave to apply for Judicial Review dismissed.

Observations for the Applicant:

1.The Applicant is a 43-year-old national of India who arrived in Hong Kong on 25 December 2006 with permission to remain as a visitor up to 29 December 2006 when he did not depart and instead overstayed and was arrested by police on 17 April 2007.  After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by the father of his former girlfriend who blamed him for her suicide.  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 ran his own business in his home district, and dated his girlfriend from his neighborhood but her father was not pleased with their relationship, and in early 2001 her father arranged for her to marry another man despite her objection, and one day in July 2001 she committed suicide, and for which her father blamed the Applicant for her death, and had sent his men to beat him on many occasions as well as making false claims to the police that he had supplied poison to his daughter for her suicide, and so the Applicant fled from Kolkata for Mumbai in September 2001 before returning to Kolkata in early 2002 but stayed in a friend’s place in Kidderpore and eventually resumed his garment business.

3.For the next several years the Applicant would travel to Hong Kong and China to purchase goods for his business without further incidents, but when he heard that the police were still looking for him, and as he still feared of being harmed or killed by his former girlfriend’s father, he therefore departed India on 24 December 2006 for Hong Kong where he overstayed, and upon his subsequent arrest by the police, he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 23 July 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).               

4.By a Notice of Decision dated 5 December 2014 the Director of Immigration (“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 his former girlfriend’s father and his followers upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that it was a private personal 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”) 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 2.9 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 part of India away from his home district in large cities such as Delhi where it would be difficult if not impossible for him to be located.

6.On 21 April 2017 the Director on his own initiative invited the Applicant to submit any 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”), and in the absence of any response from him, the Director by a Notice of Further Decision dated 9 August 2017 rejected the Applicant’s BOR 2 claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR including right to life under BOR 2 being violated upon his return to India.

7.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 appeal which was filed on 19 December 2014, and for which he attended an oral hearing on 22 July 2015 before the Board during which he did not give any further evidence but he did answer questions raised of his claim by the Adjudicator for the Board.  On 28 June 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

8.In its decision the Board found no reliable evidence of any real intention of the father of the Applicant’s girlfriend to seriously harm or kill him especially after all these years since the Applicant’s departure from the country that it doubted that there would still be any adverse interest in him, nor is there any evidence that he is being pursued by the police given the fact that he had been able to take many trips in and out of the country between 2002 and 2006 without any problem, and that in any event it was a private personal dispute between the Applicant and his girlfriend’s father without any official involvement that state/police protection would be available to the Applicant if needed upon his return to India as well as reasonable internal relocation for him to safely move to other area away from his home district to other large cities without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.   

9.On 14 January 2019 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 just stated that he does not agree with the decision but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application. 

10.By then the Applicant was also out of time with his application, as Order 53 Rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

11.As the last day of the three-month period for him to file his Form 86 fell on 28 September 2018, the Applicant was therefore more than 15 weeks late with his application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; a d (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.   

12.In the Applicant’s case, a delay of more than 15 weeks must be considered as very substantial, for which he did not provide any explanation in his Form or supporting affirmation, and as the record shows that the decision was sent on the same day to the Applicant’s last reported address without being returned through undelivered post, I do not see any good reason for his serious delay.

13.As for the merits, if any, of his intended application, as noted above the Applicant has also failed to put forth any proper ground for his intended challenge, 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 merits in his intended application either.

14.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.

15.In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions 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.                  

16.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. 

17.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, I refuse to extend time and accordingly dismiss his leave application.

Dated the 26^th day of November 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