AHMED ARIF v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 1075/2018

[2021] HKCFI 1171

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1075 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 oral submissions by (counsel for) the Applicant in open court / the Applicant being absent in open court;

1.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 5 June 2017 refused; and

2.  the application for leave to apply for Judicial Review dismissed.

Observations for the Applicant:

1.  The Applicant is a 37-year-old national of India who arrived in Hong Kong on 24 March 2014 with permission to remain as a visitor up to 7 April 2014 when he did not depart and instead overstayed and was arrested by police on 16 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 his business suppliers over some monetary disputes. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Kolkata, India. After leaving school he worked as a store keeper before starting his own mobile phone store in 2000 in his home district.

3.  For his business in selling mobile phones, the Applicant obtained his stocks from 3 suppliers in Kolkata on credit and for which he would pay the suppliers later, but after some disputes with his suppliers in late 2013 the Applicant failed to pay for the last supplies he obtained from them, and after the 3 suppliers had come to his store and gave him an ultimatum to settle their bills or else they would kill him, the Applicant became fearful for his life, and so on 24 March 2014 he departed India for Hong Kong where he overstayed, and upon his subsequent arrest by the police, he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 18 November 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

4.  By a Notice of Decision dated 22 January 2016 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 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”).

5.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found the conduct of his suppliers show no real intention to cause any harm on him upon his return to India due to the low intensity and frequency of past ill-treatment from them, that they were private business disputes 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 (“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 or Mumbai where it would be difficult if not impossible for his suppliers to locate him.

6.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, for which the Board did not find necessary to hold any oral hearing and proceeded to deal with the appeal in the absence of the Applicant and on paper, and on 5 June 2017 it rejected his appeal and also confirmed the Director’s decision.

7.  In its decision the Board accepted the Applicant’s claim of being threatened by his suppliers over their unpaid bills but found they were private business disputes without any official involvement that state/police protection would be available to the Applicant upon his return to India as well as reasonable internal relocation for him to move to other area away from his home district without any risk of being located by his suppliers that his claim for non-refoulement protection failed on all applicable grounds.   

8.  Meanwhile on 31 May 2017 the Director on his own initiative invited the Applicant 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”), and in the absence of any response from him, the Director by a Notice of Further Decision dated 22 June 2017 rejected the Applicant’s claim under BOR 2 Risk.

9.  On 18 October 2017 the Applicant again lodged an appeal to the Board against the Director’s Further Decision, but later on 8 March 2018 he wrote to the Board to request to withdraw his appeal, and on 21 March 2018 the Board accepted his request, withdrew his appeal and confirmed the Director’s Further Decision. 

10.  The Applicant then filed a Form 86 on 12 June 2018 for leave to apply for judicial review of a decision which he dated 13 April 2018 but which does not correspond with any of the above decisions of the Director or the Board, and no ground for seeking relief was given in his Form either.

11.  In his supporting affirmation of the same date the Applicant stated that he was not satisfied with the decision of the Board in dismissing his appeal against the Director’s First Decision rejecting his non-refoulement claim. Given the fact that he had earlier already withdrawn his appeal against the Director’s Further Decision, the only decision left that he may seek to challenge by judicial review would be the Board’s First Decision, and which I propose to accept as the one that he now seeks leave for judicial review, but for which he did not put forward any proper ground for the intended challenge other than a regurgitation of his claim in his affirmation that he cannot go back to his home country as his problem there has still not been solved, nor did he request any oral hearing for his application.

12.  However, for the challenge of the Board’s First Decision of 5 June 2017, the Applicant would be seriously out of time, 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 5 September 2017, the Applicant was therefore more than 9 months late with his application, and in considering whether to extend time, the court shall have regard 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: AW v Director of Immigration [2016] 2 HKC 393.

14.  In the Applicant’s case, a delay of more than 9 months must be considered as very substantial and excessive, for which he did not provide any explanation either in his Form or his affirmation, and as the record shows that the Board’s decision was sent on the same day to his last reported address without being returned through undelivered post, I do not see any good or valid reason for his serious delay.

15.  As for the merits, if any, of his intended application, as already noted above the Applicant has failed to put forward any proper ground for his intended challenge, and in the absence of any procedural unfairness in his process before the Board or any error of law or irrationality in the Board’s decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis or merits in his intended application.

16.  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.

17.  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 his 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 in the absence of any good reason for his serious delay, I refuse to extend time and 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