ALAM MOHAMMAD NAZIR v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 835/2017

[2018] HKCFI 878

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 835 of 2017

 Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 35-year-old Indian man who arrived in Hong Kong on 7 April 2014 with permission to remain as a visitor until 21 April 2014 when he failed to depart and instead overstayed until he was subsequently arrested by police and referred to the Immigration Department for investigation.  On 8 May 2014 he lodged his non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his aunt and uncle over a land dispute.  On 6 June 2014 he was released on recognizance pending determination of his claim.

2.  The applicant was born and raised in Khidirpur, Kolkata, West Bengal, India where his parents and two younger brothers still live.  After leaving school the applicant started a garment business and had travelled to Thailand and Hong Kong on business.

3.  The land in dispute is a three-storeyed building of about 2,000 square feet which belongs to the applicant’s maternal grandmother and of which the applicant’s mother and his aunt FR stand to inherit in future.  The dispute started in June 2013 when the applicant’s mother asked for her share be either given to her or the applicant but was objected to by FR and her husband NS who was a member of the ruling Trinamool Congress Party (“TMC”) in West Bengal, and which led to the applicant’s mother subsequently filing a court action for her share of the land which is still ongoing.

4.  Thereafter one day when the applicant ran into his uncle NS on the street, NS threatened him that his mother should not have brought the court action over the land as he was a member of TMC and that it would not be good for her to do so.  Thereafter NS would continue to utter threats against the applicant until one day in March 2014 when he turned violent and together with several men attacked the applicant on the street by punching and kicking him all over his body, of which the applicant subsequently reported to the police who however regarded it as a family dispute only and did not take any further action.

5.  A few days later NS approached the applicant on the street and threatened him again that if his mother did not withdraw the court action he would get someone to kill him.  The applicant became so frightened that he was advised by his parents to leave India for his own safety, which he did on 7 April 2014 when he arrived in Hong Kong and subsequently lodged his non-refoulement claim. 

6.  By a Notice of decision dated 11 September 2015 the Director of Immigration (“the 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 section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap 383 (“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 assessed on the facts that the risk of harm from NS or FR to the applicant to be low given that his other family members especially his mother who started the dispute and the court case and who are all still in India without encountering any threats or harm from FR or NS, that the dispute is a private personal matter within his family without any involvement of the state or the police and hence state protection would be available to the applicant upon his return, and that objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available for the applicant to return to India with a large population of 1,251 million people spread over a vast territory of more than 3.2 million square kilometers where the applicant can safely live and work in cities away from his home town such as New Delhi or Mumbai free of any threats from his aunt and uncle. 

8.  By a Notice of Further Decision dated 30 June 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

9.  By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, and for which he attended an oral hearing on 31 August 2016 before the Board.  On 22 September 2017 his appeal was dismissed by the Board which also confirmed the Director’s decisions. 

10.  In its decision the Board in dismissing the applicant’s claim found his accounts of the threats from his aunt and uncle inconsistent, illogical and ultimately incredible, for which it explained in details in paragraphs 19 – 21 of its decision, and that even if his accounts were true, reliable and objective COI show that state protection would be available upon his return to India, and that it would not be unduly harsh for the applicant to safely relocate to areas in India other than his home district away from any threats from NS. 

11.  On 2 November 2017 the applicant filed his Form 86 for leave to apply for judicial review of both decisions of the Director and the Board, and in his supporting affirmation of the same date he provided three grounds for his intended challenge which can essentially be summarized as follows:

 (1) failure on the part of both to properly consider his fear which led to his claim;

 (2) failure on the part of both to properly consider the supporting documents produced by the applicant as to the severity of the threats from his aunt and uncle when assessing his claim; and

 (3) failure on the part of both to conduct sufficient and independent inquiry into the relevant COI with critical analysis, for being selective in their reliance of such COI, and for failing to give proper explanation or reasons for their conclusion.

12.  The first ground is without any merit as it is clear that both the Director and the Board did take into proper account of the effect of the threats and assault on the applicant by his aunt and uncle over the land dispute, the fact that the Board found his accounts unreliable is a question of credibility of which the Board has also dealt with fairly and properly based on the facts.  I do not find any error of law or procedural unfairness in either of their decision arising from this issue.

13.  The same can be said about ground (2) when it is also clear that both the Director and the Board did take into account of the documents produced by the applicant which were essentially related to his mother’s court case over the land dispute, as detailed in paragraph 6.33 of the Director’s decision, and which was never an issue before either the Director or the Board as both clearly accepted in their decisions the facts of the land dispute and the court case, and assessed the applicant’s claim accordingly.  Again I do not see any merit in this complaint of the applicant.

14.  As for ground (3) of improper, inadequate or selective reliance on COI by the Director and the Board, it is not enough for the applicant to simply make these broad and vague statements without providing any particulars or specifics, in the absence of which I am unable to discern anything amiss arising from their reliance of COI in their assessment of the availability of state protection and internal relocation to the applicant, and on the basis of those COI listed and relied on by both of them, they were certainly entitled to arrive at their conclusion as they did in their decisions, and contrary to what the applicant said under this ground, they did give detailed explanation for their reasons and conclusion, and I do not find any merit in this ground of the applicant either.

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, or any failure on their part to apply high standards of fairness in their assessment and consideration of the applicant’s claim.

16.  For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and accordingly I refuse his leave 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