Mohammad Jasim v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1880/2019

[2024] HKCFI 2509

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1880 OF 2019

_____________

BETWEEN

_____________

_____________

JUDGMENT

_____________

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 4 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.The applicant asked for a hearing. He appeared before the Court on 2 September 2024.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant, aged 61, is an Indian. He entered Hong Kong as a visitor on 4 July 2004 and overstayed since 10 July 2004. The applicant was arrested by the police on 14 May 2007. He made a torture claim on 18 May 2007, which was rejected on 16 August 2013. His subsequent appeal was also dismissed on 14 January 2014. The applicant lodged a further non-refoulement claim on all applicable grounds other than Torture risk[1] on 15 October 2013. The claim was made on the basis that, if refouled, he would be harmed or even killed by a Shanker, who was a supporter of Indian Congress Party (“INC”), and other INC members because he injured Shanker.

5.According to the applicant, he had been a supporter of Comrat Party Indian Management (“CPIM”) since around 1995 or 1996. In around February/March 2004, shortly before the election, the applicant had a conflict with Shanker, after which he attacked him with a chopper. Thereafter, he fled to his uncle’s house. The applicant was informed that the police and some INC members had been to his home asking for his whereabouts because of his assault on Shanker. Subsequently, the INC members also came to look for the applicant at his uncle’s home when he was out.

6.On 18 April 2004, the applicant accompanied his friend to Hong Kong upon his invitation. When the applicant returned to India on 28 May 2004, he was informed by his uncle and friends that INC members were still after him. Taking the advice from his uncle, the applicant travelled to Hong Kong again on 20 June 2004.

7.While in Hong Kong, the applicant was told that the police continued attending his home looking for him and his family were verbally threatened by INC members. In the meantime, although Shanker had been discharged from hospital, the applicant still worried that INC members would take revenge on him. In 2007, some INC members/supporters came to the applicant’s home offering to settle the matter through monetary compensation. His brother rejected the offer due to his limited financial capability, after which the INC members/supporters threatened to kill the applicant when he returned.

8.The applicant had never sought assistance from the police because he was wanted by them and in any event he believed that no one could help him since INC was the ruling party. The applicant also considered internal relocation not viable because the network of INC was scattered all over India, so that his whereabouts could easily be tracked.

9.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 15 June 2018 (“the Director’s Decision”).

The Director’s Decision

10.The Director considered the applicant’s claim in relation to the following risks:

a. risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

b. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

c. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

11.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that (i) the low intensity and frequency of past ill-treatment from INC members indicated a small future risk of harm upon his return to India [13]; (ii) state protection would be available to him [15]-[16]; (iii) internal relocation would be viable [14], [17]-[18] and (iv) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [19]-[24] or Persecution risk [25]-[30].

The Board’s Decision

12.The applicant appealed the Director’s Decision to the Board. On 28 January 2019, the Board conducted an oral hearing.

13.The Board noted there was a significant delay on the applicant’s part in seeking non-refoulement protection, which he could not justified [21]-[22]. Regarding the applicant’s claim, the Board considered that the police was in search of him for proper investigation and there was no reason that INC would target a mere supporter of an opposite party. Meanwhile, the Board noted from the country of origin information that the All India Trinamool Congress (“TMC”) became the ruling party in the applicant’s locality. Although the party leader of TMC was a former member of INC, there was no evidence that TMC was under the influence of INC or had any adverse interest against the applicant [29].

14.The Board did not find the applicant to be telling the truth given that his case was both vague and unbelievable. Although the Board accepted that there was a conflict between INC and CPIM in 2004, the claimed threats by Shanker and other INC members were rejected [37]. In any event, given their past behaviour, there was no basis to believe that the applicant would be seriously harmed upon his return to India [42]. There was further no evidence to show that the Indian authorities was involved in the matter and it was not accepted that state protection would be unavailable [43]-[45].

15.Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Persecution risk or BOR 2 and BOR 3 risk [3]-[10], [46]-[55]. Furthermore, internal relocation would also be available [35], [58].

16.The applicant’s appeal was therefore dismissed and the Director’s Decision was confirmed.

Application for leave to apply for judicial review of the Board’s Decision

17.The applicant has filed Form 86 dated 3 July 2019 for leave to apply for judicial review of the Board’s Decision.

18.In his affirmation in support of his application, the applicant did not raised any ground to challenge the Board’s Decision.

DISCUSSION

19.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

20.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that the Board was right, but he wanted the Court to review his case.

21.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

22.The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded. There is no valid ground from the applicant to challenge the Board’s Decision.

23.There is no reason that the Court should interfere with the Board’s finding of the facts.

24.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

25.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

The applicant appeared in person.