KAYAMKHANI ASLAM KHAN v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 1268/2018

[2020] HKCFI 62

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1268 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 37-year-old national of India who arrived in Hong Kong on 21 August 2014, but when he was refused permission to land, he lodged a non-refoulement claim with the Immigration Department on the basis that if he returned to India he would be harmed or killed by a fellow villager over a land dispute.  He was subsequently released on recognizance pending the determination of his claim. 

2.  The Applicant was born and raised in Sujangarh, Churu, Rajasthan, India.  After leaving school he worked on his family’s farmland, got married and raised a family with a child.

3.  One day in March 2014 he discovered that his family’s farmland had been forcibly occupied by Ahmed, a wealthy and influential landowner in the village with political connections, and when the Applicant confronted him, a scuffle occurred between them which led to a fist fight between the Applicant and Ahmed’s followers that the Applicant was outnumbered but managed to escape from the scene without serious injury.

4.  After the incident the Applicant made a report to the police.  Several days later Ahmed came with some of his men to the Applicant’s home and beat him with wooden sticks, and before they left Ahmed pointed a pistol at him and told him to leave the village or else he would be killed.

5.  On the following day the Applicant again made a report to the police who however refused to do anything due to Ahmed’s influence.  Several days later Ahmed again came to the Applicant’s home, and this time he brought along two policemen, and threatened the Applicant in front of the policemen that if the Applicant continued with his dispute over the land, he would shoot and kill him and that the police would not dare do anything.

6.  After Ahmed left with the two policemen, the Applicant’s parents advised him to leave India to save his life, and so on 21 July 2014 he departed for Macau, and from there he came to Hong Kong, and when he was refused entry, he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 3 October 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.  By a Notice of Decision dated 30 October 2014 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 (“the Ordinance”) (“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 Ahmed upon his return to India as low due to the absence or low intensity and frequency of past ill-treatment from Ahmed, that it was a private land dispute between them without any official involvement that state 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 2.9 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 area of India away from his home district in large cities such as New Delhi, Mumbai or Kolkata where it would be difficult if not impossible for Ahmed or his men to locate him.

9.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 30 January 2015 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 13 February 2015 his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision the Board found the Applicant’s evidence of his claimed events occurred prior to his departure of India including Ahmed’s forced occupation of his family’s farmland with the acquiescence of the police as highly implausible and incredible,that even if true it was a personal land dispute between the Applicant and Ahmed which could be resolved through legal or court proceedings, and that it would not be unreasonable for the Applicant to safely relocate to other area of India away from his home district that his claim for non-refoulement protection failed on all applicable grounds.

11.  On 3 January 2017 the Director on his own initiative in writing 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 20 January 2017 rejected his claim under BOR 2 risk.

12.  On 15 February 2017 the Applicant again lodged an appeal to the Board against the Director’s Further Decision, but as section 37ZS of the Ordinance requires that a notice of appeal must be filed within 14 days of the decision, which in the Applicant’s case expiredon 6 February 2017 after taking into account the time for the posting of the Director’s Further Decision and the Applicant’s Notice of Appeal, the Board therefore dealt with hislate filing of his Notice of Appeal by way of a preliminary decision without a hearing pursuant to section 37ZT(2) of the Ordinance.

13.  By its decision dated 22 June 2018, the Board accepted that the Applicant’s delay of nine days cannot be regarded as serious or significant, but upon considering and finding that there was no merit in his appeal regarding BOR 2 risk, it refused his late filing of his Notice of Appeal.

14.  On 4 July 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the further decisions of the Director and the Board, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

 (1) lack of legal representation in his appeal before the Director or the Board for his claim under BOR 2 risk;

 (2) lack of legal assistance for not providing him with the service of an interpreter during the process before the Director or the Board for his claim under BOR 2 risk; and

 (3) the Board’s refusal to accept his late filing of his appeal regarding his claim under BOR 2 risk was unreasonable.   

15.  For his complaint in Ground (1) of not being provided legal representation before the Director or the Board in respect of his claim under BOR 2 risk, the Court of Appeal hasalready held that neither the high standard of fairness laid down in Secretary for Security vSakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FBv Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

16.  The Applicant already had the benefit of legal representation in presenting his case to the Director in respect of his torture risk, BOR 3 risk and persecution risk, and in his appeal before the Board regarding those risks, he was also able to testify and make representation and to answer questions put to him by the adjudicator without difficulty.

17.  Given the fact that he did not provide any additional facts relevant to the assessment of his BOR 2 risk, and based on the existing materials and the case advanced by the Applicant, the assessment of BOR2 risk would be the same as the torture risk, BOR 3 risk and persecution risk.  As such I do not find anything amiss arising from the lack of legal representation in his process before the Director or the Board regarding his BOR 2 risk, and I do not find this ground reasonably arguable.

18.  As for his complaint under Ground (2) of not being provided with the service of an interpreter for his claim under BOR 2 risk, for the same reasons given above, I do not find any merit in this complaint of the Applicant, nor is it reasonably arguable for his intended challenge. 

19.  Regarding his complaint under Ground (3) that the Board’s refusal of the late filing of his Notice of Appeal as unreasonable, the Applicant failed to provide any particulars or elaboration why it was so, but as already noted above that in the absence of any additional facts relevant to his BOR 2 risk being provided by the Applicant either to the Director or the Board, the adjudicator was in my judgment entitled to find, and rightly found, that his claim did not engage BOR 2 risk based on the existing materials and on the analysis and reasons as set out in paragraph 28 of the Board’s decision that there is no merit in his intended appeal regarding his BOR 2 risk to justify allowing the late filing of his Notice ofAppeal.  In the premises I do not find this ground of the Applicant reasonably arguable either.  

20.  As has been repeatedly emphasized by the Court of Appeal, the evaluation of risk of harm is primarily a matter for the Director and the Board who are entitled to make their evaluation based on the evidence available to them, and 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 properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see 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.

21.  The fact is that it has been established by both the Director and the Board in their earlier decisions 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.

22.  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.

23.  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