Mohammad Ashraf v. Torture Claims Appeal Board

HCAL 414/2019

[2023] HKCFI 1939

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 414 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;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 33-year-old national of India who last arrived in Hong Kong on 1 October 2016 as a visitor with permission to remain as such up to 15 October 2016 when he did not depart and instead overstayed, and on 18 October 2016 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 Trinamool Congress Party (“TMC”) as he supported their rival Communist Party of India (Marxist) (“CPIM”). 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 worked as a salesman and then an export and import buyer for a company in Kolkata, and in 2013 started to support CPIM regularly attending their local meetings and activities, during which he and his fellow supporters would from time to time come into violent conflicts with rival TMC supporters.

3.One night in 2014 after attending a party meeting, the Applicant and his fellow CPIM supporters were confronted by a group of TMC supporters who demanded that they ceased all their activities for CPIM, and when the Applicant and his fellow CPIM supporters refused, they were attacked with wooden rods and hockey sticks that the Applicant suffered injuries to his face and arms, and was later taken to the hospital for medical treatments.

4.After the assault the Applicant was afraid to return home and took shelter in a friend’s place, but later when he heard that a group of TMC supporters were looking for him everywhere, he then fled to hide in his aunt’s home for a week before eventually returning to his home.

5.For the next 2 years between November 2014 and October 2016, he reduced his participation in CPIM activities and focused in his job as an import purchaser taking regular buying trips to Hong Kong without any further incidents, but as he still feared of further attacks by those local TMC supporters, he departed India on 1 October 2016 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 23 June 2018 and attended screening interview before the Immigration Department with legal representation.

6.By a Notice of Decision dated 1 August 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”).

7.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 those local TMC supporters upon his return to India is real and foreseeable due to the low intensity and frequency of past ill-treatment from them, that there was no evidence or political reason for them to specifically target him given that he was not any important member or leader of CPIM or to have any further adverse interest in him for 2 years without any further incident prior to his departure of India in October 2016, 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 or Mumbai where it would be difficult if not impossible for anyone to locate him.

8.On 10 August 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 11 October 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 8 February 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board found no evidence of any real or political reason for those TMC supporters to target the Applicant given his insignificant position in CPIM, that the one incident in 2014 of him and his fellow CPIM supporters being attacked after a meeting was just one of common violent confrontations between supporters of rival political parties that cannot be accepted as any valid evidence to suggest an adverse interest in the Applicant, that the fact is that there had since been no further attack on him for some 2 years prior to his last departure of the country, and that he had during that period been taking regular business trips between India and Hong Kong suggested that he was not in fear of his claimed harm, and concluded his claim of fear of harm from those TMC people that caused him to flee to Hong Kong was not credible that his claim for non-refoulement protection failed on all applicable grounds.

10.On 14 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 to which he just attached a copy of the decision together with the hearing bundle of documents for his appeal before the Board but without putting forth any proper ground for his intended challenge, nor was he able to do so at the hearing of 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 analysis and reasoning set out in 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 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.

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.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 28^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