ILYAS SHAREEF v. TORTURE CLAIMS APPEAL BOARD

HCAL 3535/2019

[2024] HKCFI 1688

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3535 OF 2019

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 / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 40-year-old national of India who arrived in Hong Kong on 24 December 2015 as a visitor with permission to remain as such up to 7 January 2016 when he did not depart and instead overstayed, and on 11 January 2016 he surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if he returned to India he would be harmed or killed by his girlfriend’s family who objected to their relationship.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised as a Sunni Muslim in Hyderabad, Telangana, India.  After leaving school he worked as a salesman in a menswear shop in his home district to make his living.

3.  In 2010 he started dating his girlfriend Afreen, but as she was a Shia Muslim that they kept their relationship as a secret from their respective families due to their different religions.

4.  However, their relationship was eventually discovered by his girlfriend’s family in 2012, and one day her brothers and cousins confronted the Applicant on the streets and attacked him with wooden sticks until they were restrained by some passers-by.

5.  Thereafter Afreen was forbidden by her family to leave the house, but she managed to maintain her contact with the Applicant by phone, and in 2013 they decided to elope by running off to Mumbai where they stayed together for 6 months before returning to Hyderabad and rented a room to stay together.

6.  One day in November 2015 Afreen’s family managed to locate her and came to take her away while the Applicant was at work, and several days later the Applicant was confronted by 2 men sent by her family to threaten him never to see her again or else he would be killed.     

7.  As a result the Applicant became fearful for his life and felt it was not safe to remain in India, and so on 24 December 2016 he departed for Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 3 December 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

8.  By a Notice of Decision dated 31 December 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”).

9.  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 Afreen’s family 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 to seriously harm or kill him other to deter him from seeing Afreen, that in any event it was a private and personal 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 2.9 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 Kolkata where it would be difficult if not impossible for anyone to locate him.

10.  On 11 January 2019 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 16 October 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 21 November 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

11.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it rejected the credibility of his claim of fear of harm from the family of his alleged girlfriend Afreen that caused him to leave India to come to Hong Kong to seek protection or that he was ever in a relationship with Afreen or that he had ever been threatened or targeted for harm or harmed by any members of her family, and concluded that the Applicant had failed to establish his case that he will face any harm of any nature from anyone upon his return to India that his claim for non-refoulement protection failed on all applicable grounds.    

12.  On 28 November 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

  (1)     That the Adjudicator failed to exercise his case management power wrongly;

  (2)     that the Applicant was asked many questions during his appeal hearing that he could not understand their significance in the determination of his claim; and

  (3)     that the Board’s decision was written in English which the Applicant cannot read or understand but was never read or translated to him to enable him to fully understand the reasons for rejecting his claim or appeal.        

13.  These are however just some bare and vague assertions of the Applicant without any necessary or relevant details or particulars or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way did the Adjudicator fail to exercise his case management power wrongly, while it was the duty of the Adjudicator to ask questions in respect of the Applicant’s claim during the hearing when the Applicant was assisted by an interpreter and had had no difficulty understanding the questions or any problem answering them, and that it is clear in his present application that the Applicant had had legal assistance with regard of the translation of the Board’s decision that there is simply no merits in this complaint either.  As such, and for the given reasons I do not find any of the Applicant’s complaints reasonably arguable for his intended challenge.

14.  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: ReLakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst vDirector of Immigration [2018] HKCA 524.

15.  In the Applicant’s case, the fact is that it has been established by the Director in his decision that the risk of harm in his claim 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 vJenkins & Anor [2013] 1 HKC 526.     

16.  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.

17.  Moreover, the Applicant recently on 29 May 2024 filed an affirmation requesting to withdraw his application as his problem in his home country has been resolved and that it is now safe for him to return to India.

18.  In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation that it is safe for him to return to his home country, I 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