SK SARFARAJ v. TORTURE CLAIMS APPEAL BOARD

HCAL 417/2021

[2021] HKCFI 2228

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 417 of 2021

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;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 28-year-old national of India who arrived in Hong Kong on 4 June 2014 with permission to remain as a visitor up to 18 June 2014 when he did not depart and instead overstayed, and on 21 June 2014 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that he was a Muslim and if he returned to India he would be harmed or killed by a group of Hindu villagers in his home village over some religious dispute.

2.  After he was released on recognizance pending the determination of his claim, the Applicant was arrested by police on 2 November 2015 for using a forged identity card and undertaking unauthorized employment for which he was subsequently convicted and sentenced to prison for 15 months.     

3.  By a Notice of Decision dated 28 June 2016 the Director of Immigration (“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 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”).

4.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those Hindu villagers upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that in the absence of 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 young man with working experience to move to other part of India away from his home district in large cities such as Delhi where it would be difficult if not impossible for him to be located.

5.  By a Notice of Further Decision dated 3 March 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”).

6.  By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“Board”) against the earlier decision of the Director, the notice of which was filed on 11 July 2016, and for which he attended an oral hearing on 16 May 2017 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 7 July 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

7.  On 28 July 2017 the Applicant filed his Form 86 under HCAL 467/2017 for leave to apply for judicial review of the Board’s decision, which was refused by Deputy High Court Judge Woodcock on 13 March 2018 upon finding that none of his complaints reasonably arguable, that there was no error of law in the Board’s decision, and that there was no realistic prospect of success in his intended application.

8.  The Applicant then lodged an appeal to the Court of Appeal against that decision but his appeal was dismissed on 29 May 2018, and his subsequent applications for leave to appeal to the Court of Final Appeal were also rejected on 23 August 2018 and 11 January 2019.

9.  Meanwhile on 28 September 2018 the Applicant was again arrested by police for using a forged identity card and for undertaking unauthorized employment for which he was again convicted and sentenced to prison for 15 months, and upon his discharge from prison and was transferred to the Immigration Department for deportation, he on 16 August 2019 made a request to raise a subsequent claim through his lawyer from DLS to the Director on the basis that prior to his imprisonment he had formed a relationship with a local resident in Hong Kong who was then a married woman and had given birth to their son before she was later to divorce her Pakistani husband who also happened to be an asylum seeker, and hence he fears that her husband would bring charges against him in India for having committed adultery with his wife, for which as a Muslim the Applicant would be liable to be prosecuted by the police or authorities upon his return to India, and that his family in India were also furious about his such relationship and have made threats against him if he returned to India .

10.  By a Notice of Decision dated 23 January 2020 the Director allowed the Applicant to make his subsequent claim but upon hearing him and his lawyer in the subsequent screening process rejected his such claim as it is doubtful about the credibility of his claim of threats from his family over his relationship with his girlfriend in Hong Kong when in his previous claim he stated that all his family members had already been murdered by those Hindu villagers in 2010, and upon finding no evidence that his girlfriend’s former husband being a Pakistani has actually made any criminal complaint to the Indian authorities against him for adultery which would be difficult if not impossible given that the former husband knew very little about the Applicant’s personal background for the purpose of making a formal charge, that in any event the Applicant would be facing a proper charge under the Indian Penal Code against which he would be entitled to defend under the legal system of his home country according to reliable COI, and that with reasonable internal relocation available within India with a large population of more than 1.2 billion people spread across a vast territory of 3.2 million square kilometer that it would not be unduly harsh for the Applicant as an able-bodied young man to move safely to other area away from his home district to large cities such as New Delhi where it would be difficult if not impossible for his family or his girlfriend’s former husband to locate him.

11.  On 26 February 2020 the Applicant again lodged an appeal to the Board against the Director’s decision, for which he attended an oral hearing on 3 November 2020 with his lawyer from DLS before the Board during which he gave evidence and answered questions raised of his claim by a different Adjudicator for the Board and with submissions made on his behalf by his lawyer. On 3 March 2021 his appeal was dismissed by the Board which also confirmed the Director’s decision.

12.  In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claimed fear of harm from his family whom he had earlier in his previous claim said to have all died, while the only person capable of making the charge of adultery against him in India is his girlfriend’s former husband who is a Pakistani and would require a visa to go to India for that purpose even if he is desirous of doing so, that adultery as an offence in India has since 2018 been decriminalized in their criminal system, and that in the absence of any official involvement that state or police protection would be available upon his return to India as well as reasonable internal relocation for him to move safely to other area away from his home district without any risk of being located by his perceived enemies that his claim for non-refoulement protection again failed on all applicable grounds.        

13.  On 23 March 2021 the Applicant filed another Form 86 in these proceedings for leave to apply for judicial review of this decision of the Board, but no ground for seeking relief was given in his Form, and in his supporting affirmation he just stated that he is not satisfied with the decision as his life is still in danger in his home country but without putting forth any proper ground for his intended challenge. As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Director or in the decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

14.  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.

15.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 123 – 130 of his decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.  

16.  The fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in the Applicant’s claim if true 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.     

17.  Having considered the decision of the Director and the Board regarding the Applicant’s subsequent claim with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of their process or decisions, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s subsequent claim.

18.  Furthermore, the Applicant on 10 May 2021 wrote to the Court requesting to withdraw his leave application as his problems have been resolved and that he wants to return to his home country as soon as possible.   

19.  In the premises, and as for the reasons given that I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review of his subsequent claim, and in view of his latest confirmation that the bases for his subsequent claim no longer exist, I accede to his request 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