Case Document

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HCAL 37/2023

[2024] HKCFI 1244

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 37 OF 2023

BETWEEN
	Mohammad Rezwan	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 23-year-old national of India who last entered Hong Kong illegally on 5 October 2019 and was arrested by police more than one year later on 14 October 2020. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim for protection on the basis that if he returned to India he would be harmed or killed by his former girlfriend’s family who opposed to their relationship. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Kolkata, India where he met his girlfriend Kashish while at school in about 2018 and started going out together, but one day in September 2018 when they were seen together by Kashish’s father Vikas who then scolded them and insisted that they ceased their relationship to instead focus in their studies.

3.Thereafter the Applicant continued to secretly date his girlfriend, but later when they were again seen by her father Vikas who demanded that they stopped seeing each other due to their different religious belief and threatened to kill the Applicant if he failed to heed the demand.

4.Due to pressure from her family Kashish tried to kill herself in a suicide attempt, and later ran away from home to be with the Applicant, for which Vikas blamed the Applicant together with his followers attacked the Applicant by beating him severely, and before they left Vikas warned the Applicant that next time he would be killed.

5.Thereafter the Applicant became fearful for his life and made arrangements to leave the country, which he eventually did on 28 September 2019 when he departed India for China, and from there he later sneaked into Hong Kong, and upon his subsequent arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 16 June 2021 and attended screening interview before the Immigration Department with legal representation.

6.By a Notice of Decision dated 10 August 2021 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 girlfriend’s family upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of her family to seriously harm or kill him other than to deter him from seeing his girlfriend, that in any event it was a private dispute between 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 3.3 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied young adult 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.

8.On 20 August 2021 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 8 December 2021 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 3 November 2022 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board accepted the Applicant’s claim of fear of harm from his girlfriend’s family but found no reliable evidence of any real intention of them to seriously harm or kill him other than to deter him from seeing his former girlfriend with whom he admitted to have ceased their relationship, and that in any event it was a private dispute between him and her family without any official involvement that state or police protection would be available to the Applicant upon his return to India if resorted to as well as reasonable internal relocation alternatives for him to move safely to other parts 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.

10.On 11 January 2023 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for relief was given in his Form or his supporting affirmation of the same date in which he just stated that he does not agree with the decision but without putting forth any proper ground for his intended challenge. 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 fact is that it has been established by both the Director and the Board in their respective 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.

13.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.

14.Moreover, the Applicant recently on 19 April 2024 filed an affirmation requesting to withdraw his application as his problem in his home country has been solved that he now wants to return to India as soon as possible.

15.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 May 2024

(Chung Lai Fan, Christine)
for Registrar, High Court

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

Notes for the Applicant If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 9 May 2024 Mohammad Rezwan Applicant’s ref. no.: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 9 May 2024 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 18567 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 821/21 (formerly as RBCZ 10254/21) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)