HUSSAIN ABDUL RAHAMAN v. TORTURE CLAIMS APPEAL BOARD

HCAL 658/2018

[2020] HKCFI 2141

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 658 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 31-year-old national of India who arrived in Hong Kong on 16 April 2014 with permission to remain as a visitor up to 18 April 2014 when he did not depart and instead overstated and was arrested by police on 8 June 2014.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by certain local supporters of rival political party All India Anna Dravida Munnetra Kazhagam (“AIADMK”).  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Pattalam, Chennai, Tamil Nadu, India.  After leaving school he ran his own mobile phone trading business, and became a supporter of the political party Social Democratic Party of India (“SDPI”) in 2012 doing social services for the party in his home district.

3.  During the general election in 2014, he witnessed some AIADMK members bribing residents of the Harbor District Area to vote for their candidate, and made a report to the police who subsequently arrested six AIADMK members.  As a result some of the AIADMK supporters started to make threats against him.

4.  One day in March 2014 while he was riding his motorbike in the Royapuram Area, he was knocked down by a vehicle that he suffered scratches and minor injuries, and while he could not see clearly who were in the vehicle, he suspected that it was some AIADMK supporters trying to kill him.

5.  Fearing for his own safety, the Applicant therefore fled to hide in a relative’s place in Pereambur Area, but when he heard that those AIADMK supporters were looking for him everywhere, he felt it was no longer safe to remain in India, and so on 16 April 2014 he departed for Hong Kong where he subsequently overstayed, and upon his arrest by the police he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 24 February 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.  By a Notice of Decision dated 16 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 the Hong Kong Bill of Rights Ordinance, Cap 383 (“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 found no substantial grounds for believing that he would be in danger of being harmed or killed by those local AIADMK people upon his return to India due to the low intensity and frequency of past ill-treatment from them, that there is no conclusive evidence of any attempt by them to harm the Applicant, that it was his own speculation that it was those AIADMK supporters who knocked him down in that road accident, that in the absence of 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 3.2 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, Mumbai or Kolkata where it would be difficult if not impossible for those local AIADMK supporters to locate him.

8.  By a Notice of Further Decision dated 6 October 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 appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 27 June 2016, and for which he attended an oral hearing on 8 November 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 12 January 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.  In its decision the Board found a number of inconsistencies in the Applicant’s evidence with serious gaps in knowledge about his party SDPI that undermined the credibility of his claim, that it did not accept that the incident when he was knocked off his motorbike by a vehicle shows any real intention on the part of those AIADMK people to harm or kill him, and that with relevant COI showing AIADMK being influential mainly in Tamil Nadu instead of nationwide that with the option of internal relocation within India available for the Applicant to safely move away from his home district to some large cities such as Mumbai where he can re-establish his life and career without any risk of being located by those AIADMK people that his claim for non-refoulement protection failed on all applicable grounds.    

11.  On 17 April 2018 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, and in his supporting affirmation of the same date he merely repeated his claim that he cannot go back to his home country as his life would still be in danger but without putting forward any proper or valid ground for his intended challenge, nor did he request any oral hearing for his application.  

12.  By then the Applicant was also out of time with his application, as Order 53 rule 4(1) of the High Court Ordinance, Cap 4 requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

13.  As the last day of the three-month period for him to file his Form 86 fell on 12 April 2018, the Applicant was therefore 5 days late with his application, and in considering whether to extend time, the court shall have regards to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

14.  In the Applicant’s case, a delay of 5 days in his circumstances cannot, on any view, be regarded as serious or significant, for which the Applicant did not provide any explanation, but given its relatively short delay, I am prepared to extend time for his Form 86, and proceed to consider the merits of his intended application.

15.  However, as noted above, the Applicant has not put forward any proper ground for his intended challenge, and 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.

16.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 40 – 46 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law 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 to challenge the finding of the Board.  

17.  Furthermore, the fact 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.   

18.  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.

19.  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