Khan Asif v. Torture Claims Appeal Board
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HCAL 2059/2019 [2024] HKCFI 2668 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNO 2059 OF 2019
Application for Leave to Apply for Judicial Review Following:
Order by Deputy High Court Judge Bruno Chan: Leave to apply for judicial review be refused. Observations for the Applicant: 1.The Applicant is a 34-year-old national of India who arrived in Hong Kong on 31 October 2015 as a visitor with permission to remain as such up to 14 November 2015 when he did not depart and instead overstayed, and on 17 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 certain supporters of the political party All India Trinamool Congress Party (“TMC”) for participating in protests against TMC. He was subsequently released on recognizance pending the determination of his claim. 2.The Applicant was born and raised in Kolkata, West Bengal, India. After leaving school he ran his own mobile phone accessory business, and was a volunteer in a local human rights organization attended various activities including protests against the local political parties such TMC. 3.One day in early 2015 one of the Applicant’s colleagues was attacked and killed by people suspected to be the local TMC’s supporters as a warning against the Applicant’s organization to stop their protests, but the Applicant and his colleagues refused to heed the warning and continued with their protests. 4.One night in September 2015 while on his way home the Applicant was attacked by several unknown men with knives but he managed to make his escape from the scene, and as he suspected that those assailants were sent by the TMC people to kill him, the Applicant became fearful for his life and fled to Bulge Bulge in West Bengal to hide in his grandmother’s home, and on 31 October 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 19 September 2018 and attended screening interview before the Immigration Department with legal representation. 5.By a Notice of Decision dated 29 October 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”). 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 the local TMC people upon his return to India as low due to the low intensity and frequency of past ill-treatment from, that 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 adult with working experience to move to other areas of the country away from his home district in large cities such as Mumbai where it would be difficult if not impossible for anyone to locate him. 7.On 12 November 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he declined to attend the scheduled an oral hearing before the Board and in writing requested that his appeal be dealt with on paper despite the advice from the Board that there were important issues with various aspects of his claim that the Board would require him to explain and clarify, and in the Applicant’s insistent not to give any further oral evidence that the Board proceeded to deal with his appeal on paper, and on 18 June 2019 the Board dismissed his appeal and confirmed the Director’s decision. 8.In its decision the Board found material inconsistencies and discrepancies in the Applicant’s claim given earlier to the Director and contained in the appeal bundle but which the Applicant failed or refused to give any further evidence to explain or clarify those issues despite advice from the Board that he should do so that it doubted the credibility of his claim of fear of harm from the local TMC supporters that caused him to leave his country to come to Hong Kong to seek protection, but nevertheless gave him benefit of the doubt that his organization did face conflicts with the local TMC supporters in the past prior to his departure of his country, but found in the absence of any official involvement that state or police protection would be available to the Applicant upon his return to India if resorted to that it concluded that his claim for non-refoulement protection failed on all applicable grounds. 9.On 19 July 2019 the Applicant filed his 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 or his supporting affirmation of the same date other than just stating that he is not satisfied with the decision but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application. 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. 10.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 vDirector of Immigration [2018] HKCA 524. 11.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 state or politic protection would be available to the Applicant to negate any risk of harm in his claim upon his return to India if resorted to, while the Director has also correctly established that such risk even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, a decision also agreed and confirmed by the Board, there is simply no justification to afford the Applicant with non-refoulement protection in Hong Kong: see TK vJenkins & Anor [2013] 1 HKC 526. 12.In the premises, and 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. 13.For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his application. Dated the 3rd day of October 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
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Further hearings and rulings under HCAL 2059/2019