MOHAMMAD TAZUDDIN v. TORTURE CLAIMS APPEAL BOARD

HCAL 1372/2018

[2021] HKCFI 1917

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1372 of 2018

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 refused.

Observations for the Applicant:

1.  The Applicant is a 39-year-old national of India who arrived in Hong Kong on 14 June 2014 with permission to remain as a visitor up to 28 June 2014 when he did not depart and instead overstayed and was arrested by police on 3 July 2014. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his creditors for failing to repay his loan. 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 ran a business selling electronic goods imported from Hong Kong and China, and in January 2013 he borrowed a loan for his business from some local loan sharks repayable within 6 months with interests.

3.  However, by mid-2013 his business did not fare well, and he had difficulty repaying his loan and had to ask his creditors for further time which they agreed to postpone to end of 2013, and later with further postponement which he was able to obtain from his creditors.

4.  On 13 June 2014 he travelled to Hong Kong for purchasing goods, during which he was informed by his mother that his creditors had sent men to his home in India to threaten his family members over his failure to repay his loan, and fearing that he would be harmed or killed upon his return to India, he therefore did not depart and overstayed in Hong Kong, 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 13 January 2017 and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). 

5.  Whilst being released on recognizance pending determination of his claim, the Applicant was again arrested by police on 10 April 2016 for an offence related to illegal drugs for which he was subsequently convicted and sentenced to prison for 6 months.

6.  By a Notice of Decision dated 24 February 2017 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 all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his creditors upon his return to India as low due to the absence of any past ill-treatment from them, that there is no evidence of any real intention of the creditors to harm or kill him, that in any event it was a private monetary dispute between him and his creditors 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”) shows 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 parts of India away from his home district in large cities such as Delhi where it would be difficult if not impossible for his creditors to locate him.

8.  On 9 March 2017 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 28 March 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 29 June 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board found significant inconsistencies and discrepancies in the Applicant’s evidence as to his alleged loan form his creditors and threats against him that it did not find him a credible witness and that it is not accepted that he had borrowed the loan as alleged or that his claimed threats against him and his family had taken place or that he will face any risk of harm from anyone upon his return to India that his claim for non-refoulement protection failed on all applicable grounds.    

10.  On 12 July 2018 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, and in his supporting affirmation of the same date he merely attached copies of the decision and other documents from his hearing bundle for his appeal before the Board but without putting forward any proper ground for his intended challenge, and at the hearing of his application he just repeated his claim that his situation in his home country has become worse and that it will be even more dangerous for him to return to India.

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 Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 47 – 62 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or irrationality 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.  

13.  The fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other parts of India, a decision also 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.

14.  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.

15.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly 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