Seikh Dulara v. Torture Claims Appeal Board

HCAL 263/2020

[2023] HKCFI 1099

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 263 OF 2020

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 / 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 50-year-old national of India who arrived in Hong Kong on 30 October 2014 as a visitor with permission to remain as such up to 5 November 2014 when he did not depart and instead overstayed, and on 11 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 certain local supporters of the political party Communist Party of India (Marxist) (“CPI(M)”) as he supported their rival Indian National Congress (“INC”). He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Kidderpore, Kolkata, India. After leaving school he worked as a garment salesman before running his own garment shop in his home district, got married and raised a family with 2 children, and supported INC regularly attended their local meetings and rallies without holding any official post in the party, and when he together with his fellow INC supporters would occasionally run into noisy confrontations with some rival local CPI(M) supporters.

3.In 2012 after INC won the local municipal election, some CPI(M) supporters very angry with the result and started to abuse INC supporters which deteriorated into a mass brawl between the 2 groups of supporters with weapons resulting in numerous injuries on both sides, including the Applicant whose head and right knee were bleeding as a result of being struck by 2 of the local CPI(M) supporters that required medical treatments in a local clinic, and for which the Applicant thereafter reported to the police who later arrested and charged those 2 assailants.

4.However, after the 2 CPI(M) supporters were released on bail, they together with their fellow supporters came to the Applicant’s home threatening to take revenge against him, and only left after they were unable to find him in the house.

5.Fearing for his safety, the Applicant fled to Matiaburj to take shelter in his sister’s place before moving on to Kolkata, and on 29 October 2014 he departed India 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 9 November 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 13 December 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 inconsistencies and discrepancies in his evidence that it doubted the credibility of his claim of fear of harm from those local CPI(M) supporters that caused him to leave his country for Hong Kong, which was further undermined by his failure to raise his claim upon his arrival until some 3 months later, that there is no evidence that he was specifically targeted by them or any reason for them to do so given that he was just an ordinary INC supporter without holding any official post in the party, that in any event that the level of risk of any harm from them upon his return to India is assessed as low due to the low intensity and frequency of past ill-treatment from them, 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 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 the country away from his home district in large cities such as Delhi where it would be difficult if not impossible for any CPI(M) supporter to locate him.

8.On 22 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 18 November 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 15 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, discrepancies and contradictions in the Applicant’s evidence that it doubted his claim of fear of harm from those local CPI(M) supporters that caused him to leave his country for Hong Kong, that in any event in the absence of any evidence of state or 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 without any risk of being located by anyone that his claim for non-refoulement protection failed on all applicable grounds.

10.On 23 January 2020 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, nor did he request any oral hearing for his 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.

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 42 – 61 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.The fact is that it has also been established by both the Director and the Board in their respective 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, 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.Furthermore, the Applicant recently filed an affirmation requesting to “close” his application as it is safe for him to return to his home country.

16.In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation that it is now safe for him to return to his home country, I accordingly dismiss his leave application.

Dated the 3^rd day of May 2023

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