Khan Mohammad Afroz v. Torture Claims Appeal Board
|
HCAL 1507/2018 [2025] HKCFI 672 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1507 OF 2018
Application for Leave to Apply for Judicial Review Following:
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 47-year-old national of India who arrived in Hong Kong on 15 September 2013 as a visitor with permission to remain as such up to 29 September 2013 when he did not depart and instead overstayed, and subsequently raised a non-refoulement claim for protection to the Immigration Department on the basis that if he returned to India he would be harmed or killed by his creditor over his unpaid debts and/or by his girlfriend’s family who objected to their relationship. He was subsequently released on recognizance pending the determination of his claim. 2.The Applicant was born and raised in Kidderpore, Kolkata, West Bengal, India. After leaving school he worked as a salesman in the market in his home district. 3.In late 2010 he started his own garments and electronic business with the help of a loan borrowed from a local money-lender repayable by monthly instalments with interests within 5 years, which he managed to do with his business income, and in 2012 he also started dating a girl from a wealthy family in Kolkata. 4.However, in mid-2013 his business suffered heavy losses, and when he started to default in his loan repayments, his creditor made threats against him, and after one occasion in August 2013 when he was attacked by men sent by his creditor and suffered cuts and bruises all over his body, and before they left those men warned that next time if he still failed to repay his loan, they would kill him. 5.As he became fearful for his life, the Applicant fled to Banaras, and on 4 September 2013 he departed India for Hong Kong, during which he also received threats from his girlfriend’s family due to their objection of their relationship, and so the Applicant was afraid to return to India and therefore overstayed in Hong Kong and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 1 September 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). 6.By a Notice of Decision dated 21 November 2016 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 creditor or his girlfriend’s family upon his return to India as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of either of them to seriously harm or kill him other than to press him to repay his debts or to end his relationship with his girlfriend, that in any event these were private disputes between them only 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 where it would be difficult if not impossible for anyone to locate him. 8.On 1 December 2016 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 19 March 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 22 June 2018 his appeal was dismissed by the Board which also confirmed the Director’s decision. 9.In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from his creditor or his girlfriend’s family that caused him to leave his country to come to Hong Kong to seek protection, that even if his claimed risks were real that they arose from private disputes between him and his creditor and girlfriend’s family only without 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. 10.On 31 July 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date to which he just attached a copy of 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 of the Board’s decision. 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 risks of harm in his claim even if real were 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. 13.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. 14.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. 15.As the Court has recently been informed by the Immigration Department that the Applicant has since been removed from Hong Kong, I accordingly direct that a request be made to the Director to use his best endeavor to forward a copy of this decision together with the sealed order to the Applicant in India. Dated the 25th day of February 2025
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
|