Mohammed Khaja Nizam Uddin v. Torture Claims Appeal Board

HCAL 2245/2019

[2024] HKCFI 237

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2245 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 30-year-old national of India who arrived in Hong Kong on 24 December 2015 as a visitor with permission to remain as such up to 7 January 2016 when he did not depart and instead overstayed, and on 11 January 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 some local Hindu fundamentalists for butchering cows which are considered as sacred in the Hindu religion.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised as a Muslim in Konda Reddy Guda Kishan Bagh, Hyderabad, Telangana, India.  After leaving school he was employed as a butcher in a butcher shop in his home district.

3.One day in August 2013 a group of Hindu fundamentalists came into the butcher shop and demanded the Applicant’s employer to stop selling beef and to close down the shop or else there would be serious consequences before they left.

4.In the same evening after he finished work and was on his way home, the Applicant was confronted by the same group of Hindu fundamentalists who proceeded to accuse him of butchering cows and proceeded to beat him severely that he eventually lost consciousness and was subsequently taken by some passers-by to the local hospital for medical treatments.

5.After his discharge from the hospital and upon recovering from his injuries, the Applicant returned to work in the butcher shop, but several months later while on the street he was again confronted by the same group of Hindu fundamentalists who were furious that he was still working in the butcher shop and threatened to kill him next time if he still continued to butcher cows.

6.As the Applicant became concerned for his own safety, he therefore stayed away from his job, and one week later when he heard that the butcher shop had been damaged and vandalized while its owner was also attacked and was seriously injured, he became fearful for his life and fled to Shadnagar to take shelter in a relative’s place where he stayed for 2 weeks before returning to his home district.       

7.However, as he was continued to be harassed and intimidated by the local Hindu fundamentalists, the Applicant felt it was no longer safe to remain in India, and so in December 2015 he departed 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 22 January 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

8.By a Notice of Decision dated 28 February 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”).

9.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of him being harmed or killed by those local Hindu fundamentalists upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that since he had already quit his butcher job and left the country that it is not accepted after all these years that there would still be any adverse interest in him, 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 young 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.

10.On 13 March 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 15 March 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 1 August 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

11.In its decision the Board found material inconsistencies and discrepancies in the Applicant’s claim that it doubted his claim of fear of harm from Hindu fundamentalists that caused him to leave his country to come to Hong Kong for protection, and that in any event even if true that it was a private localized 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.    

12.On 7 August 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his affirmation he put forward the following grounds for his intended challenge:

(1)  That the Board was in breach of procedural fairness in that it had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirements;

(2)  That the Board was in breach of procedural fairness in failing to meet the greater care and duty owned to a self-represented claimant;

(3)  That the Board was in breach of procedural fairness in that its 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)  That the Board failed to keep in mind that the Applicant’s life and limb were in jeopardy and his fundamental human rights not to be subjected to torture was involved;

(5)  That the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal; and

(6)  That the Board had significantly relied on source of news not officially recognized or were simply hearsay and failed to recognize that the Applicant will face hardship if returned to his home country.

13.These are however all just vague and bare assertions of the Applicant containing a few key words or phrases but without any relevant or necessary particulars or specifics or elaboration as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or how did the Board unlawfully fetter its discretion or act in a procedurally unfair manner, or what source of news relied on by the Board were not officially recognized or were simply hearsay, or in what way was the decision unreasonable or irrational. None of these complaints were properly elaborated with the necessary or relevant details or particulars that I do not find any of them reasonably arguable for his intended challenge, 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 or any merits in his intended application either.

14.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.

15.In the Applicant’s case, the fact is that it has been correctly established by both the Director and the Board in their respective decision 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.                

16.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.

17.Moreover, the Applicant recently on 20 December 2023 filed an affirmation requesting to withdraw his application as his problem in his home country has been resolved and that it is now safe for him to return to India.  

18.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 for him to return to his home country, I refuse to grant leave and accordingly dismiss his leave application.

Dated the 18^th day of January 2024

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