ALAM SAHDAB v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 295/2019

[2020] HKCFI 478

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 295 of 2019

 Application for Leave to Apply for Judicial Review

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

Following:

1.  extension of time for the application for leave to apply for Judicial Review ofthe decision of Torture Claims Appeal Board dated 6 October 2014 refused; and

2.  the application for 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 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 38-year-old national of India who entered Hong Kong illegally on 10 November 2006 and was arrested by police on 16 October 2008.  After he was released from prison for possession of forged identity card and illegally entering and remaining in Hong Kong, and was referred to the Immigration Department for repatriation, he raised a torture claim on the basis that if he returned to India he would be harmed or killed by his creditor for failing to repay his debts.  He was subsequently released on recognizance pending the determination of his claim.

2. The Applicant was born and raised in Watgani, Kidderpore, Kolkata, India.  After leaving school he worked as a garment trader and later set up a garment business in partnership with a local businessman said to be with political connections.

3. In order to expend the business the Applicant in October 2006 borrowed US$25,000 from his neighbor Ali, and with the borrowed money he travelled with his partner to Hong Kong and Shenzhen in the same month for purchasing garment materials.

4. After checking the prices of the materials in Hong Kong, the Applicant then left the money with his partner for safe-keeping, and went to Shenzhen by himself to check on prices in China, but when he was later denied re-entry into Hong Kong by the Immigration Department, he then sneaked back illegally by boat only to find that his partner had disappeared with the money, and when he was told by his family in India that Ali had come looking for him for repayment of his loan, and when Ali learnt that the Applicant was in Hong Kong, he threatened that he would kill the Applicant upon his return to India, and sofor his own safety the Applicant remained in Hong Kong until his subsequent arrest when heraised his torture claim which was later taken asa non-refoulement claim upon commencementof the Unified Screening Mechanism, for which he competed a Supplementary Claim Form on 13 March 2014 and attended screening interview before the Immigration Department with legal representation from Duty Lawyer Service.

5. By a Notice of Decision dated 5 May 2014 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 (“HKBOR”) being violated including 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 all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from Ali upon his return to India as low due to the absence of any past ill-treatment from Ali, that there was no reliable evidence of any threats from Ali to harm or kill the Applicant, that in any event his problemswith Ali was a private monetary dispute 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 work experience to move to other part of India away from his home district in large cities such as New Delhi, Mumbai or Chennai where it would be difficult if not impossible for Ali to locate him.

7. The Applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, for which the Board did not conduct any oral hearing,and on 6 October 2014 it dismissed the appeal and also confirmed the Director’s decision.

8.  In its decision the Board explained that it was not necessary to conduct any oral hearing as the Applicant’s own case at the highest would not bring his alleged risk of fear of harm from his creditor within any of the applicable risks to be warranted non-refoulement protection, and based on that finding it concluded that his non-refoulement claim failed on all the applicable grounds. 

9.  By a Notice of Further Decision dated 5 January 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”).

10.  On 31 January 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision but of which he gave the date of 5 May 2014 which was in fact the date of the Director’s first decision, and no ground for seeking relief was given in his Form, while in his supporting affirmation of the same date he merely stated that he does not agree with the Board’s decision and that his life is still in danger in his home country that he cannot go back.  He did not request for any oral hearing for his application either.

11.  Whether it was to challenge the decision of the Director or of the Board, the Applicant would still be seriously late with his application, 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.

12.  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 is pursued by a non‑refoulement claimant on the basis that the Director’s decision has been superseded by the Board’s decision, as in the present case, it is therefore not open to the Applicant to challenge the Director’s first decision of 5 May 2014 by way of judicial review, and I shall therefore only focus on his intended challenge of the Board’s decision.

13.  As such, the last day of the three-month period for the Applicant to file his Form 86 for judicial review of the Board’s decision of 6 October 2014 fell on 6 January 2015, he was therefore late by more than four years 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: see 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 more than four years must be considered as extremely excessive, for which he did not provide any explanation, nor did he as noted above put forward any grounds for his intended challenge, and in the absence of which I am unable to find any merits in his application.

15.  As has been repeatedly emphasized by the Court of Appeal, judicial review does notoperate as a rehearing of a non-refoulement claim when the proper occasion for an applicantto 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, as already noted he did not identify any error of law in the Board’s decision or of procedure in the process before the Board, and given the clear finding in its decision that on his own case at the highest that his alleged risk of harm from his creditor in his claim does not come within any of the applicable grounds, I do not find any reasonably arguable basis to challenge the finding of the Board.

17.  Even if the Applicant had in fact intended to challenge the second decision of the Director, ie the Further Decision of 5 January 2017 regarding his BOR 2 risk, against which he has not lodged any appeal to the Board and hence it could still be susceptible to judicial review, the Applicant would still be way out of time by more than one year and nine months, and as found by the Director, the nature of the risk in his claim clearly does not engage BOR2 risk, similarly I do not find any reasonably arguable basis to challenge the finding of the Director.

18.  Furthermore, the fact that it has been established by the Director in his earlier 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, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

19.  In the premises and having proceeded to consider 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.

20.  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 reasons for his serious delay, I refuse to extend time and accordingly his application is dismissed.

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