Sk Javed v. Torture Claims Appeal Board

HCAL 287/2019

[2022] HKCFI 3538

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 287 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 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 37-year-old national of India who last arrived in Hong Kong on 18 September 2015 as a visitor and for business purpose with permission to remain up to 2 October 2015 when he did not depart and instead overstayed, and on 5 October 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 Trinamood Congress over their political dispute with his father who 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 Lohapul, Kolkata, West Bengal, India. After leaving school he worked as a tailor in a factory in his home village where his father was a tricycle rickshaw driver who supported CPIM.

3.In December 2014 his father was attacked by some local TMC supporters with hockey sticks and was hospitalized. After visiting his father in the hospital, the Applicant ran into those TMC supporters with whom he got into a heated argument during which they also beat him with hockey sticks that he was also hospitalized for injuries to his back.

4.After discharge form hospital, the Applicant took shelter in his aunt’s place in Kolkata, and in February 2015 he and his parents moved to Patna City, but one day in May 2015 the Applicant was threatened by some unknown men in the street whom he suspected were TMC supporters from his former home village, and after taking several trips to China where he purchased electronic goods, and upon returning to India for several weeks, he departed India again on 18 September 2015 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 11 January 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 30 January 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 for those TMC supporters to target him as he had no political affiliation or any involvement in their political dispute with his father, that in any event in 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 Delhi where it would be difficult if not impossible for anyone to locate him.

7.On 9 February 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 29 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 January 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence as to threats from those local TMC supporters which arose from their dispute with his father that it doubted the credibility of his claim that he fled from his home country to seek protection in Hong Kong when shortly before that he had travelled to China twice to purchase electronic goods, that there is no evidence or reason for those TMC supporters to specifically target him when he had no political affiliation at all to attract any adverse interest from them, 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 that his claim for non-refoulement protection failed on all applicable grounds.

9.On 30 January 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1)  Procedural unfairness in that the Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirement;

(2)  Procedural unfairness in that the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(3)  Procedural unfairness in that the Board’s decisions to refuse the Applicant’s appeal were unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(4)  Procedural unfairness in the Board’s failing to meet the greater care and duty owed to a self-represented claimant;

(5)  Procedural unfairness in that the Applicant was not given an opportunity to put forward his submission in an oral hearing nor was he invited to submit written submissions for his appeal; and

(6)  That the Board had significantly relied on source of news not officially recognized or were simply hearsay or outdated. That resulted in the Board making groundless speculations that it is safe for the Applicant to return to his home country.

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 applied 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 manner, or what source of news or COI were not officially recognized or were hearsay or outdated, or how was the Applicant not given the opportunity to make his submissions for his appeal when during his oral hearing before the Board that he was clearly able to make his representations and submissions before the Board without any problem. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant. 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 Board or in its decision being clearly and properly identified by the Applicant, nor do I find any reasonably arguable basis for his intended application.

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 Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 38 – 55 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.

13.Furthermore, the fact is that it has also been established by the Director in his decision 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, a decision also confirmed by eth Board, 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 30^th 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