ASHRAF NAIM v. TORTURE CLAIMS APPEAL BOARD

HCAL 1323/2021

[2021] HKCFI 3233

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1323 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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

1.  extension of time for the Applicant’s late Notice of Application for Leave to Apply for Judicial Review refused; and

2.  leave to apply for Judicial Review of both the decisions of Torture Claims Appeal Board dated 24 November 2016 and 12 March 2020 respectively dismissed.

Observations for the Applicant:

1.  The Applicant is a 44-year-old national of India who arrived in Hong Kong on 19 April 2008 with permission to remain as a visitor up to 3 May 2008 when he did not depart and instead overstayed and was arrested by police on 6 May 2008. After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim 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 Khidderpur, Kolkata, India. He never received any formal education, and made his living by working as a taxi driver in his home district.

3.  In 2007 he started a business selling tyres by borrowing a loan from a local money-lender with monthly interest payments which the Applicant was able to manage for the first year, but when his business did not fare well, he started to have difficulty keeping up with his interest payments, and after being threatened by his creditor and his followers on several occasions, the Applicant became fearful for his life, and so on 19 April 2008 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 Supplementary Claim Form (“SCF”) on 11 March 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

4.  Whilst being released on recognizance pending the determination of his claim, the Applicant was arrested by police again on 2 December 2009 for theft for which he was subsequently convicted and sentenced to prison for 2 months.

5.  By a Notice of Decision dated 30 September 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 followers upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that it was a private monetary dispute between them 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 3.2 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 part of India away from his home district in large cities such as Delhi where it would be difficult if not impossible for his creditor to locate him.

7.  On 14 October 2014 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, but for which he failed to attend the scheduled oral hearing for his appeal without explanation, and the Board proceeded to deal with the appeal in his absence and on paper, and on 24 November 2016 it dismissed his appeal and confirmed the Director’s decision.

8.  In its decision the Board found in the absence of any oral or documentary evidence from the Applicant that he had failed to establish his claim of fear of harm from his creditor that caused him to depart from his home country to come to Hong Kong, and that in any event even if his claim of fear of harm is true that in the absence of any official involvement that state/police protection would be available to him upon his return to India as well as reasonable internal relocation for him to move safely to other area away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.     

9.  Meanwhile on 28 December 2016 the Director on his own initiative invited the Applicant to submit any additional facts or information which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”), and in the absence of any response from him, the Director by a Notice of Further Decision dated 13 January 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 including right to life under BOR 2 Risk being violated upon his return to India.

10.  On 31 August 2018 the Applicant again lodged an appeal to the Board against this further decision of the Director, and for which he on this occasion did attend an oral hearing on 12 December 2019 before the Board but elected not to give evidence or to answer questions raised of his claim by the Adjudicator for the Board. On 12 March 2020 his appeal was again dismissed by the Board which also confirmed the further decision of the Director.

11.  In this decision the Board considered and assessed again the factual basis of the Applicant’s claim of fear of harm from his creditor over his unpaid debts on the materials and information available before it and arrived at the same conclusion that in the absence of any addition facts which may be relevant to the Applicant’s BOR 2 Risk that state/police protection as well as reasonable internal relocation would be available to the Applicant upon his return to India without any risk of being located that his claim for non-refoulement protection again failed under the BOR 2 ground.      

12.  On 23 September 2021 the Applicant filed his Form 86 for leave to apply for judicial review of both decisions of the Board, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he just repeated his claim that his life would still be in danger in his home country and complained that the Board failed to consider properly the risk that he had face before he departed India and which he would face again if returned to India but without providing any further details or particulars or elaboration of how it did so, nor did he request any oral hearing for his application.

13.  By then the Applicant was also seriously out of time with his application regarding either decisions of the Board, as Order 53 Rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made. 

14.  As the last day of the three-month period for him to file his Form 86 regarding the later second decision of the Board fell on 12 June 2020, never mind the much earlier first decision of more than 4 years ago, the Applicant was still more than 15 months late with his application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

15.  In the Applicant’s case, a delay of more than 15 months must be considered as extremely substantial and excessive, for which he failed to provide any explanation in his supporting affirmation, and as the record shows that the decision was sent on the same day to his last reported address without being returned through undelivered post, I do not see any good or valid reason for his such serious delay.

16.  As for the merits, if any, of his intended application, as noted above the Applicant has also failed to put forth any proper ground for his intended challenge of either decisions of the Board, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decisions being clearly and properly identified by the Applicant, I do not find any merits in his intended application either.

17.  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.

18.  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 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.     

19.  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.

20.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, I refuse to extend time and accordingly dismiss 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