Ali Kaisar v. Torture Claims Appeal Board

HCAL 2001/2019

[2024] HKCFI 1246

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2001 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 53-year-old national of India who arrived in Hong Kong on 4 November 2015 as a visitor with permission to remain as such up to 18 November 2015 when he did not depart and instead overstayed, and on 19 November 2015 he surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if he returned to India he would be harmed or killed by the local supporters of the political party All India Trinamool Congress (“TMC”) as he left them to join their rival Bharatiya Janata Party (“BJP”) and/or by his creditors over his unpaid debts. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Ekbalpur, Kolkata, West Bengal, India.  After leaving school he ran a shop selling clothes, cosmetics and toys in his home district, got married and raised a family with 2 children, and together with his brother supported TMC regularly attended their local meetings and activities.

3.In 2009 his brother had some personal dispute with one of the local TMC leader which led to constant harassments and intimidations being made against him and the Applicant, and when they were attacked by some TMC supporters sent by the TMC leader, the Applicant in 2014 left the party to join BJP, which caused the local TMC supporters to accuse him of being a traitor and threatened to kill him that the Applicant became fearful for his safety.

4.As the constant harassments from the TMC supporters had also affected the Applicant’s running of his shop that its business deteriorated with less income that the he subsequently defaulted with his repayments of expenses incurred by his credit cards for purchasing goods for his business that the credit card companies and banks also started to send men to threaten him over his outstanding debts.       

5.To avoid all such threats the Applicant in October 2015 left his home to hide in his in-law’s house in Kobikhet, and on 3 November 2015 he departed India 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 28 March 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

6.By a Notice of Decision dated 11 April 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 assessed the level of risk of harm from those local TMC supporters and/or his creditors 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 any of them to seriously harm or kill him, that in any event these were private personal or monetary disputes 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 1.2 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 New Delhi or Mumbai where it would be difficult if not impossible for anyone to locate him.

8.On 23 April 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 4 March 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 27 June 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board found numerous material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from that caused him to overstay in Hong Kong to seek protection that it rejected his account of events occurred prior to his departure of his home country were all fabrications, and that in any event even if his such claimed risks were real that in the absence of any evidence of official involvement that state or police protection would be available to the Applicant upon his return to India 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 15 July 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his Form and supporting affirmation of the same date he put forward the following grounds for his intended challenge:

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

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

(3) That the Board’s 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 meet the greater care and duty owed to a self-represented claimant;

(5) That the Board had significantly relied on source of news not officially recognized or were simply hearsay or outdated that the lack of credible source of information had resulted in groundless speculations that it is safe for the Applicant to return to his home country; and

(6) That it was procedurally unfair for the hearing bundle to be given to him just a few days before the appeal hearing with the majority of documents in English of which he was not familiar and was therefore not given sufficient time to prepare for his appeal before the Board that he was confused in terms of what was happening during the hearing.     

11.These are however all just bare and vague assertions of the Applicant containing a few key words or phrases but without any particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way did the Board unlawfully fetter its discretion or acted in a procedurally unfair manner or that the decision was unreasonable or irrational, or what source of news were not officially recognized or were hearsay or outdated, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI.  As such, and as none of these assertions except the last ground were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for his intended challenge.

12.As for his last complaint of being given the hearing bundle just a few days before the appeal hearing before the Board with the majority of the documents in English which he was not familiar with and thereby giving him insufficient time to prepare for his appeal, even assuming that the hearing bundle was indeed given to him late for his appeal hearing, of which he did not provide any documentary evidence, the fact is that he should be well familiar with most of the documents such as his own NCF and which had all been earlier already provided to him when he was represented by lawyer from DLS, and that he was able to make his representations to the Board assisted by an interpreter at the appeal hearing without any difficulty or making any request for adjournment or raising any issue over the hearing bundle. In the circumstances I do not find anything amiss over the provision of the hearing bundle or any merits in this complaint of the Applicant either.  

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 Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 22 – 130 of 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.

15.Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decisions that the risks of harm in his claim if real are localized ones 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 18 April 2024 filed an affirmation requesting to withdraw his application as all his problems in India are “finished” and that he now wants to return to his home country.

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 more problem returning to his home country, I accordingly dismiss his leave application.

Dated the 9^th day of May 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