SHAIKH QUTUBUDDIN v. TORTURE CLAIMS APPEAL BOARD

HCAL 358/2018

[2019] HKCFI 2185

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 358 of 2018

  Application for Leave to Apply for Judicial Review

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

Following:

1.  an extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 10 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 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 41-year-old national of India who last arrived in Hong Kong on 9 September 2011 with permission to remain as a visitor up to 23 September 2011 when he did not depart and instead overstayed and was arrested by police on 15 March 2013.  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 brother-in-law who blamed him for the death of his sister and/or by the local police over the death.  He was subsequently released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Ekbalpore Lane, Kolkata, West Bengal, India. After leaving school he first worked in his own garment business, and later in selling electronic goods in Kolkata imported from Mainland China and Hong Kong, and married his wife in 2007 who then moved to live with him and his widowed mother in Kolkata.

3.  During the marriage his wife had had domestic disputes with the applicant and his mother of which she would complain to her brother who was an influential member of the local community with political connections.

4.  One day on 1 April 2011 after a heated argument with the applicant, his wife tried to commit suicide by setting herself on fire, and was rushed by the applicant to the hospital. On the same evening her brother came to the hospital and after learning what happened, he blamed the applicant for the incident and proceeded to punch and kick him and threatened to kill him if his sister died.

5.  Several days later his wife died in the hospital from her injuries, and her brother then made a complaint to the local police accusing the applicant, his mother and brother of murdering his sister.  After being informed by a police friend of the complaint and that a warrant would soon be issued against him and his family, the applicant fled to Mumbai and later to Delhi, while his mother and brother also left to take shelter at his sister’s place in neighbouring Dhola Village.

6.  Subsequently the applicant hired a lawyer to successfully obtain bail for his mother and brother, but his own bail application was refused by the court, and when he heard that a warrant for his arrest had been issued, the applicant departed India on 8 September 2011 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 later completed a Non-refoulement Claim Form on 6 August 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.  By a Notice of Decision dated 29 February 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”).

8.  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 his brother-in-law or the local police to the applicant upon his return to India as low due to the absence or low intensity and frequency of past ill-treatment from them, that there is no reliable or objective evidence of any real intention on the part of his brother-in-law to harm or kill him particularly after the brother-in-law had invoked action from the police, that in the absence of official involvement that state or police protection from any harm from the brother-in-law would be available to the applicant if resorted to, 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 where it would be difficult if not impossible for his brother-in-law to locate him, while any valid warrant issued by the court or authorities for his arrest for investigation over the death of his wife is a legitimate and valid process of the legal or judicial system in India from which the applicant would not be regarded as a refugee but instead as a fugitive from justice for which he would not be entitled to non-refoulement protection in Hong Kong.

9.  By a Notice of Further Decision dated 10 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.  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 10 March 2016, and for which he attended two oral hearings on 18 January 2017 and 3 March 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 10 April 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.  In its decision the Board found the applicant’s claimed ill-treatment from his brother-in-law even on his own case failed to attain the minimum level of severity under any of the applicable risks, that in the absence of any official involvement both state protection and reasonable internal relocation alternatives would be available that it would not be unduly harsh for him to relocate within India elsewhere from his home district or his brother-in‑law’s neighbourhood that there would be no risk of him being located by his brother-in-law, while reliable COI show the existence of an effective criminal law system in India that it was not accepted that the applicant would be unfairly treated by the police or the court upon being refouled to his home country to face any investigation over the death of his wife that he was not entitled to non-refoulement protection in Hong Kong.  

12.  On 6 March 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 stated that he was not satisfied with the Board’s decision and that his life was still in danger in his home country.

13.  By then he was also seriously out of time 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.

14.  As the last day of the three-month period for the applicant to file his Form 86 fell on 10 July 2017, he was therefore almost eight 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 merit 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.

15.  In the applicant’s case, a delay of almost eight months must be regarded as very substantial or excessive, for which he did not provide any explanation in his affirmation,nor did he request for any oral hearing for his application.  In the circumstances I do not find any good for his serious delay.

16.  As for the merit, if any, of his intended application, as noted above the applicant did not provide any ground for his intended challenge other than claiming that he was not satisfied with the Board’s decision as his life was still in danger in his home country. In the absence of any error of law or procedural unfairness being shown by the applicant,I do not find any reasonably arguable basis to challenge the Board’s decision or any merit in his intended application.    

17.  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 an 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.

18.  Furthermore, the fact that it has been established by both the Director and the Board in their respective decision that the risk of harm from his brother-in-law 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, and that if he is being legally pursued by the Indian court or authorities for investigation over the death of his wife from which he would be regarded as a fugitive from justice rather than a refugee, 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 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.

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 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