Faridi Mohammed Mukarram v. Torture Claims Appeal Board

HCAL 356/2022

[2023] HKCFI 2865

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 356 OF 2022

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 39-year-old national of India who last arrived in Hong Kong on 10 December 2019 as a visitor with permission to remain as such up to 24 December 2019 when he did not depart and instead overstayed, and was arrested by police more than one year later on 28 January 2021. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his creditor over his unpaid debts and/or by the Hindu community for being a Muslim. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised as a Muslim in Kunderki, District Moradabad, Uttar Pradesh, India. After leaving school he worked as a taxi driver, and in 2016 started to run his own shop in his home district selling electronic and electrical appliances.

3.In 2017 he received a large order from a customer, and for purchasing the goods from his supplier, the Applicant borrowed a loan from a local money-lender, and upon receiving the goods from his supplier which he then delivered to his customer, but for which the customer just disappeared with the goods without making any payment to the Applicant.

4.As a result the Applicant suffered a big loss and was unable to repay his loan, and when his creditor in 2018 started to send his followers to threaten him, and after being severely beaten by those men, the Applicant became fearful for his life and fled to New Delhi to take shelter in a friend’s place.

5.However, one day in late 2019 when he was located by his creditor in Delhi, and although he managed to make his escape, he felt it was no longer safe to remain in India, and so on 9 December 2019 he departed for Hong Kong where he subsequently overstayed, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 24 September 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 31 January 2022 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 assessed the level of risk of harm from his creditor or the Hindu community 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 threats or ill-treatment ever made by any Hindu people against the Applicant that his claimed fear of harm from them was based entirely on his own speculation and from what he had read on the news, nor is there any evidence of any real intention of his creditor to seriously harm or kill him other than to press him to repay his debts which was in any event a private monetary dispute between the 2 of 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 1.3 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 Hyderabad where it would be difficult if not impossible for his creditor to locate him.

8.On 10 February 2022 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but before it was heard or determined by the Board, the Applicant by a letter dated 28 April 2022 applied to withdraw his appeal as he claimed that his mother was gravely ill that he wanted to return to his home country, and that he fully understood the effects and consequences of the withdrawal of his appeal in that the Director’s decision would be taken as final as regard his non-refoulement claim.

9.By a letter dated 13 May 2022 the Board accepted the Applicant’s request upon being satisfied that his application to withdraw his appeal was freely sought, that he understood the consequences of the withdrawal, and that there was good reason for his proposed withdrawal of his appeal, and accordingly directed that his appeal be withdrawn and that the Director’s decision dated 31 January 2022 be affirmed as final.

10.However, shortly thereafter on 17 May 2022 the Applicant filed a 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, and in his supporting affirmation of the same date he stated as follows:

“I make this Affirmation with the support of my application for leave to apply for judicial review (form86) of the decision made by torture claims appeal board NOD dismissing the appeal by ruling that the applicant fails to establish a case for non-refoulement claims. I withdraw my case in torture claim appeal board bcz the rajesh gupta agreed with me to pay my whenever u have by the help of villagers they push to rajes that solve my problem so I can go back to India, but just one week ago he call to my family member that I don’t accept the decision of the elders and I want my money back include interest the basic grounds will be provide at later date. It is not possible to me to back India.”

11.It seems from the above that the Applicant had a change of mind about withdrawing his appeal to the Board, but for whatever reason that he might have, once the Board had dismissed his appeal against the Director’s refusal of the Applicant’s non-refoulement claim upon being satisfied that it was a valid withdrawal as being the result of a deliberate and informed decision on his part, the appeal was therefore no longer extant, and as it had been properly disposed of at his own request to withdraw it on the basis that he had good reason to do so on his own free will and with full knowledge of the consequence of such withdrawal, I am unable to see any reasonably arguable basis for the Applicant to now challenge that decision of the Board.

12.As such, and as it is provided under Section 37V(2)(b) of the Immigration Ordinance which stipulates that a torture claim rejected by the Director is finally determined when the appeal against it has been disposed of by the Board, as in the present case of the Applicant at his own request to withdraw it, there is simply no legal basis for the Applicant to challenge the decision of the Board.

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.It follows in the case of the Applicant, as noted above that it has been finally determined 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, 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.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 the Director’s consideration and determination of the Applicant’s claim or in the Board’s consideration of his request to withdraw the appeal.

16.Moreover, the Applicant recently on 21 August 2023 filed an affirmation to request to withdraw his application as all his problems in his home country are “finished” and that he now wants to return home as soon as possible.

17.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 more problem for him to return to his home country, I accordingly dismiss his leave application.

Dated the 9^th day of November 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