Ahmed Shafique v. Torture Claims Appeal Board

HCAL 273/2019

[2022] HKCFI 318

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 273 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:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 38-year-old national of India who arrived in Hong Kong on 12 July 2014, but when he was refused entry by the Immigration Department, he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his neighbor Sabir and his people of the political party All India Trinamool Congress Party (“TMC”) over some personal dispute and/or by his creditors over his outstanding payments. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Kolkata, West Bengal, India where he worked as a salesman in a garment shop until 2010 when he started to run his own garment business, and also supported the political party Communist Party of India (Marxist) (“CPI(M)”). 

3.In about 2012, the Applicant was invited by his neighbor Sabir who was a TMC member to join his party but the Applicant refused, and for which Sabir was not pleased, and on one occasion in February 2014, Sabir verbally insulted and threatened the Applicant, and shortly thereafter when they ran into each other in the market, Sabir punched the Applicant and broke his nose, and for which the Applicant was taken to the hospital for medical treatment.

4.After the incident the Applicant fled to Akra Noapara to take shelter in his brother’s place. However, later when his garment goods were confiscated by the Customs, of which the Applicant suspected was caused by some false charges made by Sabir against him, as a result he was unable to pay his creditors for those goods, and when his creditors started to threaten him over the outstanding payments, he departed India on 11 July 2014 for Hong Kong, and when he was refused entry by the Immigration Department, he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 16 September 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

5.By a Notice of Decision dated 5 November 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”).

6.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 Sabir or his TMC people or the Applicant’s creditors upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that his problems with them were private personal disputes 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 New Delhi where it would be difficult if not impossible for Sabir or the TMC people or the Applicant’s creditors to locate him.

7.On 15 November 2014 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s Decision, and for which he attended 2 oral hearings on 10 February and 10 April 2015 with his lawyer from DLS before the Board during which he gave oral evidence and answered questions raised of his claim by the Adjudicator for the Board and with submission made on his behalf by his lawyer.  On 13 May 2015 his appeal was dismissed by the Board which also confirmed the Director’s Decision.

8.In its decision the Board found substantial differences and discrepancies between the Applicant’s written representation and his NCF presented to the Director and those given by him for his appeal before the Board that it doubted the credibility of his claim of fear of harm from either Sabir or TMC people or his creditors, but that in any event his problems with them were all private personal disputes without any 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 safely move to other area away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

9.Meanwhile on 3 January 2017 the Director on his own initiative in writing 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 upon receiving and considering those additional information from him, the Director by a Notice of Further Decision dated 11 April 2017 also rejected his 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.

10.The Applicant again lodged an appeal to the Board against this Further Decision of the Director, and for which he attended another oral hearing on 12 December 2018 before the Board during which he gave further evidence and answered questions raised of his claim by the Adjudicator for the Board.

11.On 24 January 2019 the Board again dismissed his appeal upon finding that the Applicant had failed to show any further evidence of threats from either Sabir or his TMC people or his creditors since he left the country, and maintained the view 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 area away from his home district without any risk of being located that his claim for non-refoulement protection also failed under the BOR 2 ground, and that it also confirmed the Further Decision of the Director.

12.On 29 January 2019 the Applicant filed his Form 86 for leave to apply for judicial review of this second decision of the Board, but given the Director’s earlier invitation as noted above for the Applicant to submit any additional information not just for his BOR 2 claim but all applicable grounds for non-refoulement protection, I propose to treat the Applicant’s application as one to challenge both decisions of the Board, but for which he failed to put forth any ground for seeking relief either in his Form or in his supporting affirmation of the same date to which he merely attached copies of the decisions and documents of his hearing bundle for his earlier appeal to the Board but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application. As such and in the absence of any error of law or irrationality or procedural unfairness in his either appeals before the Board or in its decisions 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 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.                

15.In the premises and having considered the decisions of both the Director and the Board, and of both their previous decisions on torture risk, BOR 3 risk and persecution risk as well as their later decisions on BOR 2 risk, with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in any of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim under all the applicable grounds.

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 26^th day of January 2022.

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