Khan Sarfaraz Nawaz v. Torture Claims Appeal Board

HCAL 38/2020

[2025] HKCFI 2181

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 38 OF 2020

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;

Order by Hon Fung J:

The application for leave to apply for judicial review be refused.

Observations for the Applicant:

1.The Applicant is a 39-year-old national of India who last arrived in Hong Kong on 17 March 2008 as a visitor with permission to remain as such up to 31 March 2008 when he did not depart and instead overstayed, and was arrested by police on 16 April 2008. After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim for protection on the basis that if he returned to India he would be harmed or killed by his creditor over his outstanding debts. 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 worked as a salesman in his home district, and in 2005 he started his own garment business. When one of his purchasers ordered goods from him but absconded without payment, in mid-2007 the Applicant had to borrow a loan with monthly interest payments payable until discharge of the loan from a local creditor to keep his business afloat. However, in late 2007 when the Applicant started to default in his loan repayment, his creditor came with followers and chased him for repayment thrice, and on the third occasion, they beat the Applicant with bare hands and wooden sticks and caused cuts and bruises all over his body and a fractured in his left small finger. The Applicant then fled to his uncle’s home in Park Circus without further harm from his creditor.

3.Apart from the dispute with his creditor, the Applicant was involved in a dispute between his cousin Rahis and his wife’s brother Akram. In about 2002, on one occasion when the Applicant was walking in the street with Rahis and his brothers, they ran into Akram and his people. A fight broke out between Rahis and Akram and the Applicant separated them and escaped with Rahis with both of them suffered minor injuries. After that, the Applicant started to receive threatening calls from Akram for getting involved in their dispute.

4.The Applicant therefore became fearful for his life, and so on 17 March 2008 he departed India for Hong Kong where he subsequently overstayed, and upon his arrest by the police he then raised his torture claim later taken as a non-refoulement claim for protection, for which he completed a Supplementary Claim Form (“SCF”) on 24 April 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 22 October 2014 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 his creditor and/or Akram 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 his creditor nor Akram to seriously harm or kill him other than to press him to repay his debts and to stay away from Rahis and Akram’s family dispute, that in any event it was a private and personal dispute between him and his creditor and Akram 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 2.9 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.The Applicant then lodged his appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 22 May 2015 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator. On 6 January 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claimed fear of harm from his creditor or Akram over any dispute that caused him to leave his country to come to Hong Kong to seek protection, that his credibility was further undermined by his failure to raise his claim upon first arriving in Hong Kong and only after his arrest by police, and that in any event even if his claimed risk were real that it arose from 2 respective private disputes between him and his creditor and Akram without any official involvement that state or police protection would be available to him 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 by his creditor or Akram that his claim for non-refoulement protection failed on all applicable grounds.

9.The Applicant never sought any legal challenge of this decision of the Board by way of judicial review, but meanwhile on 17 March 2017 the Director on his own initiative invited him 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 (“BOR 2”), and in the absence of any further information or supporting documents from him, the Director by a Notice of Further Decision dated 8 May 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 being violated upon his return to India.

10.On 22 May 2017 the Applicant again lodged an appeal to the Board against this Further Decision of the Director, and in his Notice of Appeal/Petition he again requested the Board to give more time to obtain the supporting documents.

11.By a decision dated 23 December 2019, the same Adjudicator for the Board decided not to hold a hearing and dealt with this appeal on paper and dismissed the Applicant’s appeal on BOR 2 ground upon finding that it has been 12 years since the Applicant came to Hong Kong and it was unreasonable to allow the Applicant any further time to obtain documents, and that the Applicant’s claim was the same as before that it simply did not engage the BOR 2 ground at all, and concluded that the Applicant had failed to establish any real and personal risk of being arbitrarily deprived of his life if refouled to India in violation of BOR 2 ground.

12.On 6 January 2020 the Applicant filed his Form 86 for leave to apply for judicial review of this second decision of the Board, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date in which he requested more time to obtain supporting documents and asserted that he is not satisfied with the decision but without providing any reason why, nor did he put forward any proper ground for his intended challenge, nor was he able to do so at the hearing of 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, and given the fact that the Board did already properly consider all the factual issues of his non-refoulement claim in its earlier decision and which the Applicant did not bring any challenge, I do not find any reasonably arguable basis for his intended challenge of this second decision of the Board.

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 refused his appeal against the Director’s Further Decision in rejecting his BOR 2 Claim for the thorough and detailed analysis and reasoning set out in its decision by the same Adjudicator for the Board with the benefit of having already heard him in his oral evidence and his answers to questions raised of his claim in his first appeal to the Board, and having properly and in my view correctly rejected his non-refoulement claim under all the other applicable grounds in its earlier decision and which the Applicant never sought leave to apply for judicial review, and in the absence of any error of law or procedural unfairness in his process before the Board or in either of its decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

15.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 even 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.

16.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 the Director’s consideration and assessment of the Applicant’s non-refoulement claim or the Board’s decision to allow the withdrawal and dismissal of his appeal.

17.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 22^nd day of May 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