MOHAMMED FAZIL v. TORTURE CLAIMS APPEAL BOARD

HCAL 2380/2019

[2022] HKCFI 2099

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2380 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 (counsel for) 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 29-year-old national of India who arrived in Hong Kong on 10 November 2016 as a visitor with permission to remain up to 24 November 2016 when he did not depart and instead overstayed, and on the following day 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 the family of his girlfriend who objected to their relationship due to their different religions. 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 in various jobs, and in 2014 started to date his girlfriend who was a Hindu, but later when he refused the demand of her family to change his religion to Hinduism as a condition to be allowed to continue with their relationship, her family started to object to their relationship by threatening the Applicant to stop seeing his girlfriend, and on two occasions her brother and uncle together with other men assaulted him with hockey sticks causing him cuts and bruises all over his body, and with death threats being made against him.     

3.  After the assaults, the Applicant became fearful for his life, and so on 9 November 2016 he departed India 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 22 August 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

4.  While being released on recognizance pending the determination of his claim, the Applicant was arrested by police on 27 June 2018 for undertaking unauthorized employment.            

5.  By a Notice of Decision dated 21 September 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”).

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 former girlfriend’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 her family to seriously harm him in particularly now that he has stopped seeing his girlfriend during all these years, that in any event his dispute with her family was a private personal matter without any official involvement that state or police protection would be available to the Applicant if resorted to upon his return to India, 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 young man with working experience to move to other part of India away from his home district in large cities such as New Delhi where it would be difficult if not impossible for his former girlfriend’s family to locate him.

7.  On 2 October 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but on 10 June 2019 he wrote to the Board to request that his case be dealt with on papers only without any oral hearing for his appeal as he had no further evidence or information to give other than those already given to the Director, and notwithstanding the Board’s advice of its concerns over various issues or questions that it had intended to raise of his claim during the oral hearing, and upon the Applicant confirming in writing that he did not want any oral hearing, whereupon the Board acceded to his request and proceeded to deal with his appeal in his absence and on the papers. On 17 July 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board found in electing not to have any oral hearing that the Applicant failed to answer and clarify various issues raised of his case that it doubted the credibility of his claim of fear of harm from his former girlfriend’s family to cause him to flee his country for Hong Kong based on the material and information provided by him in the hearing bundle, that it found no evidence of any real intention of his former girlfriend’s family to seriously harm him or any further adverse interest in him given the fact that he no longer has any relationship with her all these years since he left the country, nor is there any evidence of any reason or ability of her family to locate him anywhere in India if he is to relocate to other area away from his home district that it concluded that his claim for non-refoulement protection failed on all applicable grounds.     

9.  On 16 August 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date in which he just stated that he does not agree with the decision as he cannot go back to his home country because his life is in danger over there but without putting forth any proper ground for his intended challenge. As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

10.  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.

11.  In the Applicant’s case, the fact is that it has also been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim if true 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.                

12.  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.

13.  Furthermore, the Applicant recently on 31 May 2022 filed an affirmation requesting to withdraw his application as he wants to return to his home country, and on 13 June 2022 he further confirmed in writing that his problems in his home country have been resolved that it is now safe for him to go home.

14.  In the premises, as I am for the reasons given 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 now 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