SHAIKH SHAJADA v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 1937/2018

[2020] HKCFI 1837

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1937 of 2018

     Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 36-year-old national of India who arrived in Hong Kong on 21 October 2013 with permission to remain as a visitor up to 4 November 2013 when he did not depart and instead overstayed, and on 20 November 2013 he surrendered to the Immigration Department and raised a non-refoulement claim 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 Muslim in Kidderpore, Kolkata, India.  After leaving school he first worked as a mobile phone salesman and subsequently ran his own trading business.

3.  In 2011 he started to form a relationship with Laxmi, a girl from a wealthy Hindu family with political connections, but in March 2013 when her family discovered their relationship, they raised their objection due to their different social status and religion, and forbade Laxmi from seeing the Applicant again.

4.  Thereafter the Applicant tried to contact Laxmi secretly, and managed to meet her in a park, but her brothers suddenly appeared to confront them during which they pulled Laxmi away and hit the Applicant violently with hockey sticks that he fell onto the ground covered with bruises all over his body, and had to be taken by passers-by to the hospital for medical treatments.

5.  In July 2013 the Applicant and Laxmi decided to elope and agreed to meet at the train station, but when the Applicant arrived at the station and saw her brothers there, he knew they were there to kill him, and so he immediately left and fled to hide in a friend’s place in Dum Dum, but when he heard that Laxmi’s family were looking for him everywhere, he felt it was no longer safe to remain in India, and so on 21 October 2013 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 on 25 January 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.  By a Notice of Decision dated 7 March 2017 the Director of Immigration (“the 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 of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from Laxmi’s family upon his return to India as low due to the absence of or low intensity and frequency of past ill-treatment from them, that after all these years since their relationship had ended that there is no reason for her family to continue to hold any adverse interest in him, that it was a private 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 show that reasonable internal relocation alternatives are available in India with a large population of 1.26 billion people spread across a vast territory of more than 2.97 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 or Mumbai where it would be difficult if not impossible for Laxmi’s family to locate him.

8.  On 15 March 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the 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 10 September 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board accepted the Applicant’s claim of disputes with his former girlfriend’s family over their relationship but found only a low risk of him being harmed by them upon his return to India in the absence of any evidence of official involvement that state/police protection would be available to the Applicant if needed, as well as reasonable internal relocation within India for him to safely move to other areas to re-establish his life and career without any risk of being located by his former girlfriend’s family that his claim for non-refoulement protection failed on all applicable ground.    

10.  On 14 September 2018 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 put forward the following grounds for his intended challenge:

(1) that the Director and the Board failed to conduct inquiries from reliable sources and did not fully study the realities of his case and the consequences of him being forced to return to his home country;

(2) that the Board just refused his appeal without any reasonable ground; and

(3) that the Director and the Board failed to realize that relocation is practically impossible as the fight against terrorism touches new high and that state protection is non-exist that their decisions betrayed a bias and formula approach unlikely to fairly assess the danger to his life.  

11.  These are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the Board had erred in their decisions, or in what way did they fail to conduct inquiries from reliable sources as to the options of state protection or internal relocation relevant to his case, or in what way was the refusal of his appeal unreasonable.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant either on paper or at the hearing of his application before me despite my invitation for him to do so.  As such and in the absence of any error of law or procedural unfairness in his process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any of his grounds reasonably arguable for his intended challenge.

12.  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.  

13.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective 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 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.  

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