Mir Waseem Uddin Ali v. Torture Claims Appeal Boar

HCAL 834/2020

[2023] HKCFI 1706

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 834 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 47-year-old national of India who arrived in Hong Kong on 15 November 2014 as a visitor with permission to remain as such up to 19 November 2014 when he did not depart and instead overstayed, and 2 months later on 13 January 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 Bharatiya Janata Party (“BJP”) as he supported their rival All India Majlis-e-Ittehadul Muslimeen Party (“AIMIM”). He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Moosabowli, Hyderabad, Telangana, India. After leaving school he worked as a shop assistant in his home district, and became a AIMIM supporter regularly attended their local meetings and activities but without holding any official post in the party, during which he would together with his fellow AIMIM supporters from time to time come into conflicts with the local BJP supporters.

3.One day in 2010 while he was participating in an AIMIM activities, the Applicant was confronted by some BJP supporters who demanded that he should stop supporting AIMIM, and when he refused, they threatened that there would be serious consequences to him.

4.In mid-2011 the Applicant went to work in neighbouring area Kachiguda, and one day while on his way home from work, he was confronted by a group of BJP supporters who then slapped and punched him, and before they left, one of them produced a knife and warned him that next time they would cut him with it.

5.After the attack, the Applicant became fearful for his life and fled to Secunderabad and kept a low profile by reducing his participation in AIMIM activities.

6.However, the threats and harassments from the BJP supporters persisted, and after further attacks on the Applicant and his fellow AIMIM supporters, the Applicant felt it was no longer safe to remain in India, and so on 15 November 2014 he departed for Hong Kong where he overstayed and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 16 April 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.By a Notice of Decision dated 4 May 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”).

8.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 BJP 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 them to specifically target him for harm given that he was just an ordinary AIMIM supporter without holding any official post in the party or for them to still have any further adverse interest in him after all these years since he left the country, 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 3.2 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 areas 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.

9.On 14 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 20 December 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 7 April 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.In its decision the Board accepted the Applicant’s claim of threats and conflicts with those local BJP supporters but found that 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 areas 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.

11.On 7 May 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

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

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

(3)  Procedural unfairness in that the Board failed to meet the greater care and duty owed to a self-represented claimant;

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

(5)  That in dismissing the Applicant’s appeal the Board failed to indicate any interaction with the facts of the claim or to conduct any analysis of the supporting documents or turned its mind to the grounds under consideration being the risk of violating the Applicant’s right to life under BOR 2;

(6)  That the Board had significantly relied on source of news not officially recognized or simply hearsay in assessing whether the Applicant would face hardship if returned to his home country;

(7)  That the Adjudicator had relied on cases which are outdated and that the lack of credible source of information had resulted in the Board making groundless speculation.

12.These are however all just some vague and bare assertions of the Applicant containing a few key words or 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 how did the Board unlawfully fetter its discretion or act in a procedurally unfair manner, or in what way did the Board fail to conduct proper enquiry or analysis of the Applicant’s claim, or which source of news or information relied on by the Board were unofficially recognized or were hearsay or outdated. None of these assertions were elaborated or presented with any necessary or relevant particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge.

13.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.

14.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 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.

15.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.

16.Furthermore, the Applicant recently filed an affirmation requesting to withdraw his application as all his problems are “finished” that he now wants to return to his home country.

17.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 of no longer any problem for him to return to his home country, I accordingly dismiss his leave application.

Dated the 30^th day of June 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