Iqkabal Saijad v. Torture Claims Appeal Board

HCAL 362/2019

[2023] HKCFI 1728

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 362 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 the Applicant being absent 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 41-year-old national of India who last arrived in Hong Kong on 11 March 2015 as a visitor with permission to remain as such up to 25 March 2015 when he did not depart and instead overstayed, and on 30 March 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 some local drug dealers for reporting their illegal activities to the police and/or by the police over some false charges made by those drug dealers against him. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Kolkata, West Bengal, India. After leaving school he ran his own garment and building materials business in his home district to make his living.

3.In late 2013 he started to notice illegal drugs dealing activities by some local gangsters in his neighbourhood that he subsequently made a report to the police, and as a result some of those drug dealers were arrested but later released on bail pending investigation.

4.Several months later one day in December 2015 while on the street the Applicant was confronted by those drug dealers who accused him of making the report to the police, and proceeded to beat him with wooden sticks and other weapons that the Applicant suffered cuts and bruises all over his body that he was subsequently taken to the hospital for medical treatments.

5.Upon discharge from hospital, the Applicant continued to receive intimidations and harassments from those drug dealers, and one day while walking on the street, he ran into those drug dealers who beat him again with their fists but he managed to make his escape by jumping on a passing bus.

6.After the attack the Applicant again made a report to the police but was instead detained by them over some false changes made against him by those drug dealers, and that he was only released later on bail with the assistance of a lawyer.

7.After the incident the Applicant became fearful for his safety, and so on 10 March 2015 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 1 March 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

8.By a Notice of Decision dated 27 March 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”).

9.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 drug dealers or the police upon his return to India as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of those drug dealers to seriously harm or kill him or of any adverse interest of the police in him given that he was able to leave the country without any problem, that in any event in the absence of any official involvement in the threats from those drug dealers 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 Mumbai where it would be difficult if not impossible for anyone to locate him.

10.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 16 October 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 18 January 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

11.In its decision the Board found significant inconsistencies, discrepancies and contradictions in the Applicant’s evidence given in his appeal hearing that it considered him not a witness of truth and rejected the credibility of the fundamental basis of his claim of fear of harm from any drug dealers or police that caused him to leave his country to come to overstay in Hong Kong or that he would face any form of harm upon his return to India that it concluded that his claim for non-refoulement protection failed on all applicable grounds.

12.On 11 February 2019 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 in which he just stated that he is not satisfied with the decision as his life is still in danger in his home country but without putting forth any proper ground for his intended challenge, nor did he attend the subsequent scheduled hearing of his application without any explanation. 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.

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 Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 57 – 78 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.

15.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 real 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 the 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.

16.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.

17.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and accordingly I refuse his leave application.

Dated the 3^rd day of July 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