Majumdar Nibas v. Torture Claims Appeal Board

HCAL 1518/2020

[2023] HKCFI 1854

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1518 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;

Order by Deputy High Court Judge Bruno Chan:

1.  The application for leave to apply for Judicial Review be reinstated; and

2.  Leave to apply for judicial review refused

Observations for the Applicant:

1.The Applicant is a 51-year-old national of India who arrived in Hong Kong on 21 April 2013 as a visitor with permission to remain as such up to 5 May 2013 when he did not depart and instead overstayed, and on 7 May 2013 he surrendered to the Immigration Department and raised a torture claim on the basis that if he returned to India he would be harmed or killed by certain local supporters of the political party Trinamool Congress Party (“TMC”) as he supported their rival Communist Party of India (Marxist) (“CPIM”), and after his torture claim was rejected, he then sought non-refoulement protection on the same basis. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in North Surabhisthan Village, Badkulla Town, Nadia District, West Bengal, India where he started working at a very young age as a welder making grills and eventually ran his own store selling grills in his home district, and followed his family’s tradition to support CPIM regularly attended their local meetings and activities without holding any official post in the party.

3.During one occasion in April 2013 while attending a CPIM rally with his fellow supporters in Kolkata, some TMC members called in the police to disperse their rally during which many of the CPIM supporters were arrested and were abused and beaten by the police during detention, and as a result CPIM made a complaint against police brutality to the Chief Minister of West Bengal, and launched more protests in Kolkata which the Applicant also participated with his fellow CPIM supporters.

4.A few days later the CPIM office in Badkulla was attacked by some TMC supporters during which the Applicant and his fellow supporters were beaten with wooden sticks but he managed to escape from the scene and made his way home without serious injuries.

5.On the following day several TMC supporters came to the Applicant’s store to threaten him with a pistol that he should leave CPIM or else they would shoot him, and that they only left after the Applicant begged for his life and promised to stop supporting CPIM.              

6.However, as the intimidations and harassments from those local TMC supporters persisted who also demanded extortion money from him and threatened to close down his store if he refused to pay, the Applicant felt it was no longer safe to remain in India, and with the help and advice of a businessman whom he had met on a train, the Applicant on 20 April 2013 departed India for Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Supplementary Claim Form (“SCF”) on 14 February 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 14 March 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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 TMC supporters upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that there was no evidence or reason for them to specifically target him for any political reason given that he was just an ordinary CPIM supporter without holding any official post in the party, 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 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 Mumbai or Delhi where it would be difficult if not impossible for anyone to locate him.

9.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 20 May 2020 with his lawyer from DLS before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board and with submissions made on his behalf by his lawyer.  On 24 June 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.In its decision the Board found inconsistencies, discrepancies and implausibility in the Applicant’s evidence that it doubted his claim of fear of harm from those TMC supporters that caused him to come to Hong Kong, that there is no evidence or reason for TMC to specifically target him for harm or to have any adverse interest in him given that he was just an ordinary CPIM supporter without holding any official post in the party, 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 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.    

11.On 17 July 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, and before his application could be heard, the Applicant on 7 January 2022 filed an affirmation requesting to withdraw his application as his problem had been solved and that he wanted to return to his home country as soon as possible. Accordingly, on 14 January 2022 his application was allowed by Deputy High Court Judge P Li to be so withdrawn.

12.However, more than one year later on 4 April 2023 the Applicant issued a summons for leave to “appeal” as he claims that his problem in India is not finished, that his enemy is still trying to kill him, and that he is advised by his family not to return to his home country.

13.Upon ascertaining from the Applicant at the hearing of his summons that he has in fact wanted to continue with his leave application for judicial review of the Board’s decision instead of appealing against the Court’s decision allowing his withdrawal, which he claimed that he made in January 2020 when his father was then dying in India and hence he was desperate to return home to be by his father’s side, but despite having withdrawn his application, the Immigration Department failed to make arrangement for him to return to India, and now that he has been informed by his family that the risk from those local TMC supporters still exists, he therefore wants to proceed with his leave application.

14.Given the fact that the merits of his application had not been properly or formally determined by the Court when it was allowed to be withdrawn, and in giving him the benefit of the doubt that his request to withdraw his leave application had not been the result of a deliberate or informed decision on his part, and hence it may not have been a valid withdrawal, I allowed the Applicant to reinstate his leave application for the Court’s determination.   

15.However, as noted above the Applicant has failed to put forward any proper ground for his intended challenge, and at the hearing he could only repeat his claim of fear of harm from those local TMC supporters as before.  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.

16.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.

17.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.                

18.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.

19.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 14^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