Rahaman Shaik Nadimur v. Torture Claims Appeal Board

HCAL 3714/2019

[2024] HKCFI 2023

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE\

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3714 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:

1.  Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 19 September 2017 be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.The Applicant is a 43-year-old national of India who arrived in Hong Kong on 16 August 2014 as a visitor with permission to remain as such up to 30 August 2014 when he did not depart and instead overstayed, and was arrested by police on 1 September 2014.  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 certain local supporters of the political party All India Trinamool Congress (“TMC”) as he supported their rival Communist Party of India (Marxist) (“CPI(M)”).  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Khiddeerpur, Kolkata, West Bengal, India. After leaving school he worked as a salesman in a garment shop in his home district to make his living, and supported CPI(M) regularly attended their local meetings and activities including putting up their posters or banners in his neighbourhood.

3.As TMC was then the ruling party in his home district in West Bengal, some of its local supporters often harassed and intimidated the Applicant and his fellow CPI(M) supporters, demanding them to leave their party to join TMC, and when they refused, they then threatened and assaulted the Applicant and his fellow CPI(M) supporters.

4.In 2014 as the next election approached, such harassments and assaults from the local TMC supporters against the Applicant and his fellow CPI(M) supporters escalated, and after one incident in mid-2014 when the Applicant was again beaten by those TMC supporters when he refused their demand to join their party, and when the local police refused to help, the Applicant felt it was no longer safe to remain in India, and so on 15 August 2014 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 15 March 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

5.By a Notice of Decision dated 10 May 2016 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”).

6.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 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 them to seriously harm or kill him or any political reason to specifically target him given the fact that he was just an ordinary CPI(M) supporter without any official post in the party, 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 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 or Mumbai where it would be difficult if not impossible for anyone to locate him.

7.On 24 May 2016 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which the Board did not hold any oral hearing and dealt with his appeal on paper, and on 19 September 2017 the Board dismissed the appeal and also confirmed the Director’s decision.

8.In its decision the Board accepted the Applicant’s claim of being harassed and threatened by some local TMC supporters in his home district over their political differences but found no evidence of any real intention of them to seriously harm or kill him other than to harass him to join their party which was common in India or any political reason for them to specifically target him given that he was just an ordinary CPI(M) supporter without any official post in the party, and that in any event in the absence of 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 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.

9.Meanwhile on 21 June 2017 the Director on his own initiative invited the Applicant to submit any additional facts which he may consider relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute and non-derogable rights under the HKBOR including right to life under Article 2 (“BOR2” and “BOR 2 Risk”), and in the absence of any response from him, the Director by a Notice of Further Decision dated 10 November 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 the HKBOR including right to life under BOR 2 ground being violated upon his return to India.    

10.On 4 December 2017 the Applicant again lodged an appeal to the Board against this further decision of the Director, and for which the Board again did not hold any oral hearing and dealt with the appeal on paper, and on 24 August 2018 the Board again dismissed the Applicant’s appeal and confirmed the Director’s further decision upon finding the Applicant’s claim on the factual basis of even his own case did not engage the BOR 2 ground.          

11.On 12 December 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the first decision of the Board dated 19 September 2017 under torture risk, BOR 3 risk and persecution risk, and put forward the following grounds for his intended challenge:

(1) That the Board reached the decision wrongly in assessing his non-refoulement claim as the decision was not fair or reasonable as required by the Wednesbury test in failing to recognize that his life must be protected by the criminal law from extra-judicial killings that he may face if deported back to his home country;

(2) That the Board failed to appreciate or place proper or sufficient weight or importance to the presence of State Acquiescence in his case which led to an unfair outcome of rejecting his claim without realizing that he was tortured at the behest of the state law enforcement agencies and politicians that the state would be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(3) That the Adjudicator acted unreasonable and was procedurally unfair by placing too much reliance on COI but failed to take into account the Applicant’s personal background and experience in assessing his claim;

(4) That the Board had listed relevant COI which supported the Applicant’s aversions that the police in his country would not be able to protect but failed to consider or give sufficient weight to such evidence and instead ruled otherwise against the Applicant’s case which was a clear case of unfair attitude shown by the Board which in itself is enough to render its decision void;

(5) That the Board failed to attain the high standard of fairness required by the Wednesbury test in failing to take into account the Applicant’s argument that corruption and incompetency of the administration in the Applicant’s country is still a very serious problem as various human rights organizations had compiled reports that stated testament to the Applicant’s assertions;

(6) That the Adjudicator was procedurally improper and unfair when assessing whether or not to accept the Applicant’s explanations and unreasonably required him to respond to questions that he was not in a position to offer any response;

(7) That the Adjudicator failed to take into account the nexus of political parties and official corruption which exist in the Applicant’s country making the persecution of the Applicant effectively persecution by the State; and

(8) That the Adjudicator made a ruling to dismiss the Applicant’s appeal based on findings which the Adjudicator ought to allow and thus the decision was irrational.     

12.By then the Applicant was clearly out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

13.As the last day of the three-month period for him to file his Form 86 as regard the Board’s first decision of 19 September 2017 fell on 19 December 2017, the Applicant was therefore almost 2 years late with his application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

14.In the Applicant’s case, a delay of almost 2 years must be considered as extremely substantial and inordinate, for which he did not provide any explanation or reasons in his Form or affirmation, nor did he request any oral hearing for his application, and as the record shows that the Board’s first decision was sent on the same day of 19 September 2017 to the Applicant’s then reported address without being returned through undelivered post, I am unable to see any good reason for his such serious delay.      

15.As for the merits, if any, of his intended application, those grounds put forward by the Applicant are all just some bare and vague assertions 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 was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy were State Acquiescence or extra-judicial killings to the Applicant’s case or what evidence is there to suggest that the Applicant has ever been tortured by law enforcement agencies or politicians when on the factual basis of even his own case that it was a private dispute between him and certain local TMC supporters over their political differences without any official involvement at all. As such, and as none of these assertions 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.

16.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.

17.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.                

18.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.

19.Moreover, the Applicant recently wrote to request to withdraw his application as his mother is sick that he wants to return to his home country but without any explanation as to what has happened to his claimed risk of harm from those TMC supporters.

20.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 the absence of any good reason for his such serious delay, I refuse to extend time and accordingly dismiss his leave application.

Dated the 8^th day of August 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