Mohammad Shakil v. Torture Claims Appeal Board

HCAL 2135/2018

[2022] HKCFI 917

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2135 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 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 45-year-old national of India who last arrived in Hong Kong on 31 October 2008 as a visitor with permission to remain up to 14 November 2008 when he did not depart and instead overstayed, and was arrested by police on 5 April 2009. After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to India he would be harmed or killed by his uncle over his outstanding debts, 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 Kolkata, West Bengal, India. After leaving school he started his own garment and electronic business in his home district by borrowing a loan from his maternal uncle in 1999 for establishing a shop for his business, but for the next several years the Applicant failed to repay his loan despite repeated demands from his uncle including two incidents when his uncle had his men beaten him with wooden sticks, and in 2006 the Applicant was able to borrow a further loan from his uncle for his planned business trip to UK which he hoped would enable him to expand his business to earn enough money to repay his loans to his uncle.

3.Accordingly, the Applicant departed India in September 2006 for UK, but during his transit in Hong Kong, he discovered that his travel agent had disappeared with his travel documents for UK, and so he stayed in Hong Kong for two months before returning to India in late 2006.

4.Upon returning to his home district in India, and as his uncle continued to demand repayment of his loans with death threats, the Applicant therefore fled from his home district to Manipur where he worked for a friend which required taking business trips to Hong Kong and China purchasing goods for his friend’s business.

5.In 2008 the Applicant started his own business importing goods from Hong Kong, but during his last trip to Hong Kong on 30 October 2008, his money and passport were stolen, and as he was fearful of being killed by his uncle over his outstanding loans if he were to return to India without any means to repay his uncle, he therefore overstayed in Hong Kong, and upon his subsequent arrest by the police he raised his torture claim, and after it was rejected by the Immigration Department, he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 7 November 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.Whilst being released on recognizance pending the determination of his claim, the Applicant was again arrested by police on 5 August 2016 for undertaking unauthorized employment for which he was subsequently convicted and sentenced to prison for 22 months.            

7.By a Notice of Decision dated 7 December 2017 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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”).

8.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 uncle upon his return to India as low due to the low intensity and frequency of past ill-treatment from his uncle, that there is no evidence of any real intention of his uncle to seriously harm or kill him given the fact that his loans had remained outstanding for so many years other than to put pressure on him to repay his debts, that in any event it was a private monetary 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 his uncle to locate him.

9.On 21 December 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 8 August 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 27 September 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board found the Applicant’s claim of fear of harm from his uncle over his debts which had remained outstanding for years but caused him to seek non-refoulement protection in Hong Kong as incredible, and that in any event even in the absence of any official involvement that state or 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 by his uncle that his claim for non-refoulement protection failed on all applicable grounds.          

11.On 5 October 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 or in his supporting affirmation of the same date in which he just attached a copy of the decision but without putting forth any proper ground for his intended challenge, nor was he able to do so at the hearing of the application. 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. 

12.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.

13.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 12 – 15 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law 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 to challenge the finding of the Board.  

14.Furthermore, 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 the Applicant’s claim if true 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 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 1^st day of April 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