Alam Sayed v. Torture Claims Appeal Board
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HCAL 2714/2019 [2025] HKCFI 2783 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2714 OF 2019
Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge’s decision (Ord 53 r 3) 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 49-year-old national of India who last arrived in Hong Kong on 23 August 2007 as a visitor with permission to remain as such up to 6 September 2007 when he did not depart and instead overstayed, and was arrested by police on 17 September 2007. After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to India he would be harmed or killed by his creditor over his unpaid debts, and after his torture claim was rejected, he then sought non-refoulement protection on the same basis. He was subsequently released on recognizance pending the determination of his claim. 2.The Applicant was born and raised in Kolkata, India. After leaving school he worked as a salesman in his home district to make his living. 3.In 2006 he started his own logistic business for transporting goods with a loading truck with the help of a loan borrowed from a local money-lender to be repaid by monthly instalments with interest, which he initially managed to make from his business income. 4.However, on one occasion in May 2007 his truck was robbed and he lost all the goods and suffered a serious loss in his business, and when he defaulted in his loan repayments, his creditor started to send men to threaten him, and on one such occasion when those men beat him with wooden sticks, and warned him that next time if he still failed to repay his loan that he would be killed. 5.After the assault the Applicant became fearful for his life, and on 12 August 2007 he departed India for China, and from there he later travelled to Hong Kong where he subsequently overstayed, and upon his arrest by the police he raised his torture claim, and after it was rejected he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 14 May 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). 6.Whilst released on recognizance pending the determination of his claim, the Applicant was arrested by police on several occasions for various offences including theft and drugs trafficking, and for which he had served various terms of imprisonments ranging from 2 to 27 months. 7.By a Notice of Decision dated 5 June 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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”). 8.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 followers 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 to seriously harm or kill him other than to press him to repay his debts, that in any event it was a private monetary dispute between him and his creditor 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 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 his creditor to locate him. 9.On 5 June 2018 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 30 July 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 16 August 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision. 10.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 any creditor over any debt that caused him to leave his country to come to Hong Kong to seek protection, that even if his account of events prior to his departure from India were true that there was no reliable evidence of any real intention of his creditor to seriously harm or kill him, and that in any event it was a private monetary dispute between the 2 of them only without any official involvement that state or police protection would be available to the Applicant upon his return to India to negate any risk arising therefrom that it is not satisfied that he will face any real risk of harm upon his return to India that it concluded that his claim for non-refoulement protection failed on all applicable grounds. 11.On 17 September 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 in which he just stated that he does not agree with the decision but without putting forth any proper ground for his I tended challenge, nor did he subsequently attend the scheduled hearing of his application without any explanation. 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. 12.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. 13.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 51 – 71 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim and on the basis of relevant COI as to the availability of state protection to negate his claimed risk even if real upon his return to India, and in the absence of any error of law 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 to challenge the finding of the Board. 14.Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s 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, a decision also agreed and confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526. 15.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. 16.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 15th day of July 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
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Cases cited in this judgment