MERAJ AHAMAD alias MERAJ AHMED v. TORTURE CLAIMS APPEAL BOARD

HCAL 26/2021

[2025] HKCFI 4956

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 26 OF 2021

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;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 32-year-old national of India who arrived in Hong Kong on 1 June as a visitor with permission to remain as such up to 15 June 2014 when he did not depart and instead overstayed, and was arrested by police more than 2 months later on 20 August 2014. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim for protection on the basis that if he returned to India he would be harmed or killed by his neighbors over some land dispute which they had with his family in his home village. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Gorakhpur City, Uttar Pradesh, India. After leaving school he worked as a farmer on his father’s farmland in his home village.

3.  In April 2013 his neighbors wanted to build a wall between their farmland and the farmland of the Applicant’s father but which led to some heated arguments between the 2 families over the boundaries between the farmlands and which deteriorated into several fights between male members of the families including the Applicant, and after one incident in July 2013 when the Applicant was attacked by his neighbors with wooden sticks that he suffered cuts and bruises all over his body that the Applicant subsequently reported the matter to the local police, but was advised that his neighbors were influential with political connections that his family should give up their farmland to avoid further trouble.

4.  As a result the Applicant became fearful for his safety and fled from his home village for Delhi to take shelter in a friend’s place, but after being attacked by some unknown men with iron rods that he lost consciousness and was taken to a local hospital for medical treatment, the Applicant thereafter fled to Haryana, and on 28 May 2014 he departed India for Hong Kong where he subsequently overstayed, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 28 June 2018 and attended screening interview before the Immigration Department with legal representation.

5.  By a Notice of Decision dated 31 July 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 found no substantial grounds for believing that there will be any real risk of him being harmed or killed by his neighbors upon his return to India due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of his neighbors to seriously harm or kill him, that in any event it was a private land dispute between his neighbors and his family 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 young 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 8 August 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 24 November 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 23 December 2020, his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision[1], 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 neighbor over any land 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 until more than 2 months alter and only after his arrest by the police, that even if his account of events prior to his departure of India were true that that there was no reliable evidence of any real intention of his neighbors to seriously harm or kill him, and that in any event it was a private land dispute between his neighbors and his 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.

9.  On 7 January 2021, 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 in his supporting affirmation of the same date in which he just stated that he rejects the decision as it disregarded his dangerous situation but without putting forth 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, I do not find any reasonably arguable basis for his intended challenge of the Board’s decision.

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 v Director 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 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.

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.

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