Mohammed Alam v. Torture Claims Appeal Board and Another

HCAL 100/2019

[2022] HKCFI 2373

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 100 of 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following;

	consideration of documents only;          or
	consideration of the documents and 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 37-year-old national of India who arrived in Hong Kong on 20 May 2015 as a visitor with permission to remain up to 24 May 2015 when he did not depart and instead overstayed, and on 29 May 2015 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by certain local supporters of the political party Trinamool Congress Party (“TMC”) as he supported their rival Communist Party of India (Marxist) (“CPIM”). He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Watgunge, Kolkata, West Bengal, India. After leaving school, he worked in various jobs, got married and raised a family with a child in his home district, and supported CPIM regularly participated in their political activities and putting up their posters and banners in public.

3.On one occasion during the 2015 Kolkata Municipal Election, while the Applicant together with his fellow CPIM supporters were putting up their party posters and banners on the streets, they were confronted by some TMC supporters which led to a mass brawl between the two groups that some of them including the Applicant were injured and were taken to the local hospital for medical treatments.

4.About two weeks later the same group of TMC supporters came to the Applicant’s home to demand that he stopped supporting CPIM or else he would be killed. After they left the Applicant became fearful for his life, and fled from his home district to take shelter in a friend’s place at Gaya in Bihar, but when he later heard from his wife that those TMC people were still looking for him everywhere, the Applicant felt it was no longer safe to remain in India, and so on 20 May 2015 he departed for Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 4 April 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 27 April 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”).

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 those local TMC supporters upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence or reason of them to specifically target the Applicant given that he was just an ordinary CPIM supporter with no official position in the party that it is not accepted that there would still be any adverse interest in him all these years since he left the country, that in the absence of 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 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 part of the country away from his home district in large cities such as Mumbai where it would be difficult if not impossible for anyone to locate him.

7.On 7 May 2018 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 November 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 24 December 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board accepted the Applicant’s claim of being a supporter of CPIM and of conflicts with the local TMC supporters but found no reliable evidence of him being specifically targeted by them or that they would have any adverse interest in him for political reason given that he was just an ordinary CPIM supporter without any official post in the party, and that in any event 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 part of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

9.On 10 January 2019 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and put forward the following grounds for his intended challenge:

(1)  That the Director and the Adjudicator reached their decisions wrongly in assessing the Applicant’s non-refoulement claim that these decisions were not reasonable or fair as required by the Wednesbury test as his right to life must be protected by the criminal law from extra-judicial killings that he may face if he were deported to his home country;

(2)  That the Adjudicator failed to give him sufficient time and chance to arrange relevant evidence for his non-refoulement claim as well as his appeal;

(3)  That the Director failed to appreciate or give proper weight or importance to the presence of state acquiescence in the Applicant’s case which led to an unfair outcome of rejecting his non-refoulement claim;

(4)  That the Director failed to take into account of the fact that the Applicant was tortured at the behest of the state law enforcement agencies and politicians that the state would be rendered liable to him by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(5)  That the Director had listed relevant COI which supported the Applicant’s aversions that the police in his home country would not be able to protect but failed to consider or give enough weight to such evidence and instead ruled otherwise against the Applicant which is a clear case of unfair attitude shown by eth Director which in itself is enough to render his decision void; and

(6)  That the Director failed to apply high standards of fairness in failing to take into account of the fact that corruption and incompetency of the administration in the Applicant’s home country is still a serious problem as reported by various human rights organization which stated testament to the applicant’s assertions that the decision should be considered unreasonable in the scope of public law.

10.These 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 apply to his case or how the Director or the Adjudicator had erred in their decisions, or in what way were their decisions unfair or unreasonable, or how did they fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or how did the Adjudicator fail to give him time or opportunity to provide his evidence for his claim or appeal when he never raised any such issue during his oral hearing before the Board, or when was he ever tortured by state officials or politicians when the factual basis of his own case is that he was only involved in some conflicts between 2 groups of rival political parties without any evidence of official involvement at all that there is simply no evidence of him being tortured by anyone prior to his departure from his home country. 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 of his proposed grounds reasonably arguable or any basis for his intended challenge.

11.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.

12.In the Applicant’s case, the fact is that it has been correctly 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 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.

13.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.

14.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 2^nd day of August 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