Bilal v. Torture Claims Appeal Board

HCAL 113/2019

[2022] HKCFI 2432

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 113 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:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 31-year-old national of India who arrived in Hong Kong on 12 January 2015 as a visitor with permission to remain up to 26 January 2015 when he did not depart and instead overstayed, and on 3 February 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 a fellow villager due to dispute between their 2 families over the election of the village head in their home village. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Salempur, Ludhiana District, Punjab, India where his uncle was the village head.

3.In the 2011 election for village head, the Applicant and his family assisted his uncle in his campaign for re-election, during which his father had an argument with the son of the opposing candidate RS who then made threats against the Applicant and which led to a mass brawl between members of the two families and their supporters.

4.After RS won the election and became the village head, the Applicant decided to leave the village to avoid any further threats from RS or his family to take shelter in his aunt’s place in Village Chandpur in Yamuma Nagar, Haryana State before moving on to other relatives in other villages.

5.However, when he later heard that RS and his son were looking for him everywhere, the Applicant felt that it was no longer safe to remain in India, and so in December 2014 he departed India for Macau, and from there he later travelled to Hong Kong on 12 January 2015 where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 25 October 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 23 November 2017 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 of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that his claimed risk of harm from RS and family upon his return to India would materialize due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of RS to seriously harm or kill the Applicant other than his own speculations, that in any event it was a private minor dispute between the two families 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 3.2 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied young 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.

8.On 4 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 23 October 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.

9.In its decision the Board found inconsistencies and contradictions in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from a fellow villager that caused him to leave his country for Macau and Hong Kong without first seeking any assistance from police, that there is no evidence of any real intention of the fellow villager to seriously harm or kill him over such a minor dispute, and that in any event in the absence of 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 move safely to other part of the country away from his home village without any risk of being located by anyone that his claim for non-refoulement protection failed on all applicable grounds.

10.On 11 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 in his supporting affirmation of the same date and his subsequent written submissions he put forward various grounds for his intended challenge which may be summarized as follows:

(1)  That the Director had erred in refusing the Applicant’s claim while the Adjudicator had also failed to assess his claim fairly;

(2)  That the Board had unlawfully fettered its discretion by refusing his appeal on the ground that they did not satisfy the requirement;

(3)  That the Adjudicator acted in a procedurally unfair manner in dealing with his appeal;

(4)  That the Board’s decisions to refuse his appeal were unreasonable or irrational in the public law sense or the result of procedural error or unfairness;

(5)  That the Board failed to meet the greater care and duty owed to a self-represented claimant;

(6)  That due to lack of understanding of the process and that the hearing bundle was not provided with interpretation that the Applicant was confused of what was happening at the hearing; and

(7)  That the Board’s decision has never been read or translated to the Applicant to enable him to understand the reasons behind the rejection of his claim thereby depriving him of the opportunity to make a full application for judicial review is procedurally unfair.

11.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 Board or the Adjudicator had erred in the decision, or in what way did the Board unlawfully fetter its discretion or act in a procedurally unfair manner, or how was he being confused by the provision of the hearing bundle for his appeal hearing before the Board when he was clearly able to present his case and give evidence for his claim during his appeal hearing assisted by an interpreter and during which he never raise any issue about the hearing bundle or requested the Adjudicator for more time to prepare for his appeal before the Board, while the complaint that the Board’s decision was never translated for him clearly cannot be used to challenge the validity of the decision. As such I do not find any of them reasonably arguable for his intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any basis for his intended application either.

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 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.

14.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.

15.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 5^th 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