HAKAM ALI v. TORTURE CLAIMS APPEAL BOARD

HCAL 2383/2020

[2025] HKCFI 4544

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2383 OF 2020

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;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 45-year-old national of India who arrived in Hong Kong on 21 April 2013 as a visitor with permission to remain as such up to 5 May 2013 when he did not depart and instead overstayed, and was arrested by police on 29 July 2013. After he was referred to the Immigration Department for investigation, he raised a non‑refoulement claim for protection on the bases that if he returned to India he would be harmed or killed by his former business associate over their monetary dispute and/or by the Hindu majority as he is of the Muslim minority. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised as a Muslim in Alam Wala Kalan, Moga, Punjab, India. After leaving school he worked as a farmer in his home village to make his living.

3.  In 2009 the Applicant was invited by a fellow villager Singh to form a marble trading business, for which they each invested the same amount of capital and were to share the profits equally.

4.  However in 2012 the Applicant started to suspect that Singh had cheated on his share of the business profits by claiming that they had all been used on expanding the business, which led to serious arguments between them, and after the Applicant had made a complaint to the police, Singh became furious and shortly thereafter together with his followers confronted the Applicant, and proceeded to attack him with wooden stick until they were restrained by their fellow villagers, whereupon the Applicant was taken to the hospital for medical treatment of a broken ankle.

5.  After his discharge from the hospital, the Applicant reported the assault to the police, whereupon Singh again came to threaten him for involving the police that he would kill him for that.

6.  As a result the Applicant became fearful for his safety and fled to Mukatsar to take shelter in his aunt’s place, and on 20 April 2013 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 15 September 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  By a Notice of Decision dated 9 October 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”).

8.  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 former business partner Singh upon his return to India as low due to the low intensity and frequency of past ill-treatment from Singh, while there is no evidence at all of any harm or ill-treatment being inflicted by any Hindu on the Applicant prior to his departure of India that it is not accepted that he will face any such risk upon his return other than his own groundless speculation, while his problem with Singh was a private monetary dispute between just the 2 of them 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 adult with working experience to move to other areas of the country away from his home district in large cities such as Karachi where it would be difficult if not impossible for anyone to locate him.

9.  On 10 November 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 17 November 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 26 November 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  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 business partner Singh or any Hindu that caused him to leave his country to come to Hong Kong to seek protection, that even if his account of events prior to his departure of India were true that there was no reliable evidence of any real intention of Singh to seriously harm or kill him other than to deter him from going to the police over their business or monetary dispute, while there is simply no evidence at all of any threats or ill‑treatment ever inflicted on the Applicant by any Hindu at any time prior to his departure of India that it is not accepted that he will face any such risk upon his return, and that in any event his problem with Singh was a private dispute between just the 2 of them 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 by anyone that his claim for non-refoulement protection failed on all applicable grounds.

11.  On 4 December 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1)  That the Board reached its decision wrongly in assessing his non-refoulement claim;

(2)  That the Board’s decision was not fair or reasonable as required by the Wednesbury test in failing to recognize that his life must be protected by the criminal law from extra-judicial killings that he may face if deported back to his home country.

12.  These are however just some bare and vague assertions of the Applicant without any necessary or relevant particulars or specifics 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 was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or what relevancy was extra-judicial killings to the Applicant’s case when on the factual basis of even his own case that it was essentially a private business dispute between him and his former business partner only without any official involvement or political element at all. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find either of them reasonably arguable for his intended challenge.

13.  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.

14.  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.

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, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

16.  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, 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