Mahmood Alam v. Torture Claims Appeal Board

HCAL 1671/2020

[2023] HKCFI 2421

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1671 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:

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 17 June 2005 as a visitor with permission to remain as such up to 1 July 2005 when he did not depart and instead overstayed, and was arrested by police more than 2 years later on 14 November 2007. After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by the local supporters of the political parties Communist Party of India (Marxist) (“CPIM”) and Trinmool Congress Party (“TMC”) as he supported their rival Indian National Congress Party (“INC”). 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 business, and followed his family’s tradition to support INC regularly attended their local meetings and rallies, during which he and his fellow INC supporters often ran into violent conflicts and confrontations with the local supporters of rival parties CPIM and TMC which would sometimes lead to mass brawls between the groups resulting in injuries and even deaths amongst the supporters including injuries to the Applicant.

3.After receiving repeated death threats from supporters of those rival parties, the Applicant moved to Santeshpore in 2004 to avoid those threats, and on 17 June 2005 he departed India for Hong Kong where he subsequently overstayed, and upon his arrest by the police more than 2 years later in November 2007 he then raised his torture claim later taken as a non-refoulement claim for protection, for which he completed a Supplementary Claim Form (“SCF”) on 3 July 2014 and attended 2 screening interviews before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

4.By a Notice of Decision dated 14 October 2014 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“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 assessed the level of risk of harm from those local CPIM or TMC supporters upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that those violent conflicts amongst supporters of rival political parties were common in those days and that there is no evidence or reason for them to specifically target the Applicant or to continue to have any adverse interest in him after all these years since he left the country in 2005, 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.

6.On 24 October 2014 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 July 2015 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 24 November 2016 his appeal was dismissed by the Board which also confirmed the Director’s decision.

7.On 1 December 2016 the Applicant filed his Form 86 under HCAL 220/2016 for leave to apply for judicial review of the Board’s decision, and put forward various grounds for his intended challenge, and upon hearing his submissions before the Court, Madam Justice D’Almada Remedios on 8 February 2018 refused his leave application after finding none of his proposed grounds were reasonably arguable for his intended challenge, that there was no error of law or procedural unfairness in his process before the Board or in its decision, and that there was no prospect of success in his intended application (HCAL 220/2016 [2018] HKCFI 273).

8.The Applicant did not appeal against that decision, and meanwhile on 29 December 2016 the Director on his own initiative invited the Applicant to submit any additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute and non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk), and upon receiving and considering further submissions from him in which he repeated his claims of fear of harm from supporters of rival political parties as before and added that India is no longer a safe country with crimes and gangsters everywhere that even his family in his home country have felt threatened, the Director by a Notice of Further Decision dated 15 March 2017 also rejected the Applicant’s BOR 2 Claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under HKBOR including right to life under BOR 2 being violated upon his return to India.

9.On 20 March 2017 the Applicant again lodged an appeal to the Board against this Further Decision of the Director, and for which he attended another oral hearing on 15 May 2020 before the Board during which he gave further oral evidence and answered questions raised of his BOR 2 Claim by a different Adjudicator for the Board.

10.On 30 June 2020 the Applicant’s appeal was again dismissed by the Board which also confirmed the Further Decision of the Director upon finding that his BOR 2 Claim was just based on some bare and vague assertions unsupported by any reliable evidence, that in any event it is not accepted that after all these years since he left the country in 2005 that any rival political parties would still have any adverse interest in him or would be interested in looking for him all over the vast territory of India, and concluded that he had failed to establish a case under BOR 2 Risk.

11.On 17 August 2020 the Applicant filed another Form 86 in these proceedings for leave to apply for judicial review of this second decision of the Board, and put forward the following similar grounds as before;

(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 requirements;

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

(3)  Procedural unfairness in that the Board’s decisions to refuse the Applicant’s appeal were unreasonable or irrational in the public law sense or the result of procedural errors or unfairness; and

(4)  Procedural unfairness in the Board’s failure to meet the greater care and duty owed to a self-represented claimant.

12.Those are all just some bare and vague assertions of the Applicant containing a few key words or phrases but without any relevant or necessary particulars or specifics or elaborations as to how they apply to his claim 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 had acted in a procedurally unfair manner or that the decision was unreasonable or irrational in the public law sense. None of these assertions were elaborated or presented with the 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 his claim simply does not engage the BOR 2 ground on its limited scope, and that it has also been correctly established by both the Director and the Board in their earlier decisions that the risk of harm in his claim if real 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.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 under BOR 2 or any other applicable grounds.

16.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 refuse his leave application.

Dated the 26^th day of September 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