MOHAMMED SHAMIUL HAQUE v. THE ADJUDICATOR OF THE NON-REFOULEMENT CLAIMS PETITION OFFICE APPOINTED TO DETERMINE THE APPLICANT’S PETITION AND ANOTHER

HCAL 586/2018

[2019] HKCFI 438

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 586 of 2018

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 the Applicant being absent;

1.  an extension of time for the application for leave to apply for Judicial Review against the decision of the Torture Claims Appeal Board made on 7 April 2017 refused; and

2.  leave to apply for Judicial Review dismissed.

It is further directed that:

3.  if the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he/she must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

4.  when filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal ;

5.  the court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

6.  if the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

7.  liberty to apply.

Observations for the Applicant:

1.  The applicant is a 32-year-old national of India who arrived in Hong Kong on 7 January 2014 with permission to remain as a visitor up to 21 January 2014 when he did not depart and instead overstayed until he was arrested by police on 7 February 2014.  After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by certain members/supporters of rival political party All India Trinamool Congress (“TMC”) and/or arrest by the police for being involved in a fight.  He has since been released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Khidderpore, Kolkata, West Bengal, India.  After leaving school he worked as a salesman in various companies in Kolkata, and joined the Communist Party of India (Marxist) (“CPIM”) as an ordinary member assisting in getting people to vote during general elections, and it was during those activities when he started to experience conflicts with supporters of rival TMC.

3.  One day after TMC won the general election in May 2012, a group of their supporters came to the applicant’s house to verbally abuse him and then assaulted him by punching and kicking him and damaging furniture in his house, and that his father and brother were also beaten when they tried to intervene until his neighbours came to their assistance and took them to the hospital for treatments. 

4.  However, on the same night some police came to arrest the applicant and his father on charges brought by the same group of TMC people for starting the said fight, and it was only on the following day when they were released on bail by the court, and later when the applicant ran into some of those TMC people, he was abused by them and slapped on the face and was told that now that TMC was in power, they would take revenge against him and other CPIM supporters.

5.  After the incident the applicant made several trips to Hong Kong and Mainland China as well as staying in his aunt’s place in Falta in West Bengal for several weeks before returning home in Kolkata, but when the threats and abuses from those TMC people still persisted, he again went to stay at his uncle’s place in Mumbai during which he did not encounter any further incidents with the TMC people, but when he returned home in September 2013 those threats and harassments resumed, he therefore felt it was no longer safe to remain in India, and therefore departed on 7 January 2014 for Hong Kong where he overstayed and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 1 September 2015 and attended screening interview before the Immigration Department with legal representation form the Duty Lawyer Service.

6.  By a Notice of Decision dated 4 March 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 (“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 all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm from those TMC people or the police upon his return to India as low due to the low intensity and frequency of past ill-treatment from those TMC people, that he was not specifically targeted by TMC as his family members had remained safe at home while he encountered no incidents from TMC elsewhere in Kolkata or Mumbai prior to his departure, that he was not wanted by the police either as he was able to leave India on several occasions without any problem, that in the absence of 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 work experience to move to other part of India away from his home district in large cities such as Mumbai or Delhi where it would be difficult if not impossible for those TMC people to locate him.

8.  By a Notice of Further Decision dated 10 February 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 16 March 2016, and for which he attended an oral hearing on 8 March 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 7 April 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.  In its decision the Board found that the applicant displayed little knowledge about his party CPIM or his alleged membership or the election which he claimed took place in 2012, as well as inconsistencies and contradictions between what were stated in his NCF to the Immigration Department and his evidence given at the hearing before the Board that it was not persuaded that he had given a true account of his past experiences in India, or that he was ever a member of or had any significant affiliation with CPIM, or that he had ever been harassed or threatened or assaulted by the TMC people or arrested by the police, and concluded that his claim failed on all applicable grounds.

11.  On 9 April 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 it he put forward the following grounds for his intended challenge:

(1)  that the Director and the adjudicator reached the wrong decision in assessing his non-refoulement claim;

(2)  that their decisions were not fair or reasonable as required by the Wednesbury test;

(3)  that they failed to take into consideration that the right to life must be protected from extra-judicial killings which he may face if deported to India; and

(4)  that the adjudicator failed to give him sufficient time and opportunity to produce relevant evidence for his non-refoulement claim or his appeal.  

12.  By then the applicant was of course way out of time with his Form 86, as Order 53, rule 4(1) of the Rules of the High Court, Cap 4A 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.  In considering whether to extend time the Court shall have regard to (i) the length of the delay; (ii) the reasons 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 & anor CACV 63/2015.

14.  In the applicant’s case, as held in Re Moshsin Ali [2018] HKCA 549, the decision of the Director is no longer susceptible to judicial review once an appeal to the Board has been pursued and that the Director’s decision has been superseded by the Board’s decision, and it is therefore not open to the applicant to challenge the Director’s decision by way of judicial review.

15.  As for the Board’s decision, as it was made on 7 April 2017, the last date for the applicant to make his application fell on 7 July 2017 under the said rule, and hence when he filed his Form 86 on 9 April 2018, he was more than nine months late which must be regarded as a very substantial delay, for which he did not provide any explanation in his affirmation, nor did he do so at the scheduled hearing of his application now before me when he failed to appear without giving any reason.

16.  As for his proposed grounds for his intended challenge, they are just some broad and vague assertions of the applicant containing a few key words or phrases but without any particulars or specifics or elaborations as to how they applied to his case, or how the Director or the adjudicator had erred in their decision, or in what way were their decisions unfair or unreasonable, or what relevancy were extra-judicial killings to his case, or how did the adjudicator fail to give him sufficient time or opportunity to produce his evidence for his claim or appeal.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant, and as such I do not find any basis or merits in any of them.

17.  As has been repeatedly emphasized by the Court of Appeal, 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 Re Litoun Mounsy [2018] HKCA 537.

18.  In the present case the Board rejected the applicant’s claim based on its adverse finding on his credibility for the careful and detailed analysis and reasoning set out in paragraphs 47 – 71 of its decision, and with rigorous examination and anxious scrutiny I do not find any error of law or procedural unfairness in it, nor any failure on its part to apply high standards of fairness in its 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 in the absence of any good reason to do so I refuse to extend time for his late application, and 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