HOSSAIN SHAHBAZ v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 948/2017

[2018] HKCFI 1047

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 948 of 2017

     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 25-year-old national of India who arrived in Hong Kong on 4 June 2014 with permission to remain as a visitor up to 18 June 2014 when he did not depart and instead overstayed until 19 August 2014 when he was arrested by the police.  After he was referred to the Immigration Department for investigation, he lodged his non-refoulement claim on 21 August 2014 with the Department on the basis that if he returned to India he would be harmed or killed by his uncle and his three sons over a land dispute.  He has since been released on recognizance pending determination of his claim.   

2.  The applicant was born and raised in Babu Bazar, Khidderpore, Kolkata, India as the only child to his parents where his grandfather had a piece of land in the village which has since passed on to his father and his uncle in equal share, and of which the applicant stands to inherit his full share from his father, while the three sons of his uncle would each get 1/3 share from their father.  After leaving school the applicant worked as a salesman in clothing in his home district and lived with his parents.

3.  In about 2014 his uncle’s three sons started to begrudge about their smaller share in the land than the applicant’s, and proposed that the land be shared amongst the four of them equally, to which the applicant and his father disagreed, which led to frequent quarrels between the two families during which the uncle and his sons would from time to time make threats against the applicant.

4.  In February 2014 the applicant’s father decided to sell his share of the land to avoid any further dispute with the other family, but upon hearing about it his uncle’s three sons came to the applicant’s home and demanded that his father not to do so and threatened to harm him and his father.  Thereafter the uncle and his sons would continue to threaten the applicant and his father over the land.

5.  One day in April 2014 when the applicant ran into his uncle’s eldest son and his friends in the street, a fight broke out between them during which the applicant suffered injuries to his chin and eyebrow which required treatments at a medical clinic afterwards, but he did not report the matter to the police.  Yet the verbal threats from the uncle and his sons would persist, and by June 2014 the applicant decided to leave India to avoid further dispute with them, and therefore departed on 3 June 2014 for Hong Kong where he lodged his non-refoulement claim, and for which he subsequently completed his Non- refoulement Claim Form on 11 March 2016 (“NCF”) with legal representation from Duty Lawyer Service.

6.  By a Notice of Decision dated 27 June 2016 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 found on the facts of the applicant’s case that the low intensity and frequency of ill-treatment from the uncle and his sons indicative of a small future risk of harm upon the applicant’s return to India, that the dispute is a personal and private matter without any involvement of the state or the police that state protection would be available to the applicant if resorted to, and that 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 young man to move to areas away from his home district such as Delhi or Mumbai where he can live and work safely and free of any threats from his uncle and his sons. 

8.  By a Notice of Further decision dated 10 July 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 other 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 his appeal to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, which appeal he filed on 5 July 2016, and for which he attended an oral hearing on 3 October 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 14 November 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.  In its decision whilst the Board found the applicant’s evidence of the dispute over his father’s land vague and confusing, it accepted that he may have some personal problems with some family members prior to leaving India, and that as a result he was threatened and on one occasion assaulted, but concluded that he has failed to show a genuine and substantial risk of being subjected to the claimed ill-treatment should he be refouled to India where both state protection and reasonable internal relocation alternatives would be available to him if resorted to upon his return.     

11.  On 24 November 2017 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he set out his grounds for his intended challenge as follows:

(1)  procedural impropriety in failing to conduct sufficient inquiry into relevant COI as to the situation in India;

(2)  error/misdirection in law in failing to consider the psychological impact of the threats on him;

(3)  error/misdirection in law in assessing that his claim was due to his personal problems; and

(4)  irrationality in concluding that he would not be subjected to torture upon refoulement to India.   

12.  For his ground (1) over insufficient inquiry into COI as to the situation in India, in the absence of any particular or specifics from the applicant, I can only assume he was referring to situation of state protection or police corruption in India, of which both the Director and the Board did refer substantively to reliable and objective COI in their assessment of those situations, and upon rigorous examination thereof I do not find any merits in this complaint of the applicant.

13.  As for the remaining grounds which are all broad and vague assertions unsupported by any particulars or specifics, such as the consideration of psychological impact on him which was clearly inclusive in their consideration of his fear of threats from his uncle and his sons, while both the Director and the Board were clearly entitled to find on the facts of the applicant’s own case that his dispute with his uncle and his sons was of private and personal nature, and that for the reasons as detailed in their decisions I agree that there is no basis or merit in the applicant’s complaint that it was irrational to conclude that there is no genuine or substantial risk of him being harmed upon his return to India.

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