Chaudhry Mohammad Asif v. Torture Claims Appeal Board

HCAL 531/2022

[2022] HKCFI 3638

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 531 of 2022

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:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 31-year-old national of India who arrived in Hong Kong on 20 October 2015 as a visitor with permission to remain up to 3 November 2015 when he did not depart and instead overstayed, and on 9 November 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 members of the Hindu religious organization Rashtriya Swayamsevak Sangh (“RSS”) for refusing to join their organization. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised as a Muslim in Jogipura, Uttar Pradesh, India and later moved with his family to Ludhiana, Punjab. After leaving school he worked in a technology company, and supported the political party Shiromani Akali Dal (“SAD”) regularly attended their local meetings and rallies.

3.Sometime in August 2013 some RSS members approached him to join their organization, but when he refused, they threatened that if he did not want to join RSS, he had better left town for his own safety.

4.Several days later while on his way home from work, the Applicant was attacked by those RSS members with wooden sticks and other weapons that he suffered cuts and bruises all over his body and was taken to hospital for medical treatments.

5.After the attack the Applicant became fearful for his safety, and therefore moved from place to place to take shelter in the homes of various relatives, and later when he heard that those RSS people were still looking for him everywhere, he therefore departed India on 19 October 2015 for Hong Kong, and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 11 October 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 7 November 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”).

7.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 RSS people 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 for them to specifically target the Applicant, that in any event 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 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 or Delhi where it would be difficult if not impossible for anyone to locate him.

8.On 20 November 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 27 November 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 10 January 2020 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence that cast doubts in his claim of fear of harm from those RSS people that caused him to flee his home country for Hong Kong, that there is no reliable evidence or reasons for RSS as an apolitical Hindu religious and cultural organization to specifically target the Applicant with violence, 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 away from his home district to other part of the country without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

10.On 24 June 2022 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 to which he just attached a copy of the decision but without putting forward any proper ground for his intended challenge.

11.By then the Applicant was also seriously 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.

12.As the last day of the three-month period for him to file his Form 86 fell on 10 April 2020, the Applicant was therefore more than 2 years 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; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

13.In the Applicant’s case, a delay of more than 2 years must be considered as extremely substantial and inordinate, for which he did not provide any explanation in his Form or affirmation, and as the record shows that the decision was sent on the same day of 10 January 2020 to his last reported address without being returned through undelivered post, I am unable to see any good reason for his such serious delay.

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

15.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.

16.In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in his 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.

17.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.

18.Furthermore, the Applicant has recently written to request to withdraw his application as he wants to return to his home country.

19.In the premises, as I am for the reasons given 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, and given his latest confirmation of his wish to return to his home country, I see no reason to extend time and accordingly dismiss his leave application.

Dated the 2^nd day of December 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