Ahmed Nesar v. Torture Claims Appeal Board

HCAL 1429/2019

[2023] HKCFI 1740

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1429 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 / 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 33-year-old national of India who last arrived in Hong Kong on 4 November 2015 as a visitor with permission to remain as such up to 19 November 2015 when he did not depart and on the same day 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 his creditors over his outstanding debts. 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 started his own business trading in garments and mobile phone accessories in his home district by borrowing loans from 2 local money-lenders repayable within 3 years and with monthly interest payments.

3.Initially the Applicant managed to make his monthly interest payments to his creditors from his business profits, but after suffering from some serious losses in his business, he started to default with his loans repayments in February 2014, and after being threatened and beaten by men sent by his creditors, the Applicant fled from Kolkata to Bagnan, but as he was still fearful for his life, he later departed India on 3 November 2015 for Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 19 March 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

4.By a Notice of Decision dated 13 April 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”).

5.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that his claimed risk of harm from his creditors upon his return to India is real and foreseeable due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill him other than to press him for repayment of his loans, that in any event they were private monetary disputes between them without 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 areas of the country away from his home district in large cities such as Delhi where it would be difficult if not impossible for his creditors to locate him.

6.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 28 November 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 10 May 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

7.In its decision the Board accepted the Applicant’s claim of fear of harm from his creditors over his outstanding debts but found no evidence of any real intention of his creditors to seriously harm or kill him other than to press him for repayment of his debts, and that in any event it was a private monetary dispute between them without 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 part 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.

8.On 27 May 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 decision to refuse the Applicant’s appeal was unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(4)  Procedural unfairness in that the board failed 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 keep forward his submission in an oral hearing nor was he invited to submit written submissions during his appeal hearing; and

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

9.These are however all just some vague and bare assertions of the Applicant with a few key words or phrases but without any relevant or necessary 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 in what way did the Board unlawfully fetter its discretion or that the Adjudicator act in a procedurally unfair manner, or what COI or source of news relied on by the Board were unofficially recognized or outdated, while the complaint of not given any opportunity to provide his submissions during his appeal hearing is clearly and factually incorrect as the record shows that he was clearly able to give evidence and answer questions as well as making his submissions to the Board during his appeal hearing. As such and as none of these assertions were elaborated or presented with any particulars or specifics by the Applicant, I do not find any of his proposed grounds reasonably arguable for his intended challenge.

10.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.

11.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.

12.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.

13.Furthermore, the Applicant has recently filed an affirmation requesting to withdraw his application as all his problems have been solved that he wants to return to his home country as soon as possible.

14.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 problem returning to his home country, I accordingly dismiss his leave application.

Dated the 5^th 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