ABDUL WAHID v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 2092/2018

[2020] HKCFI 2058

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2092 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 42-year-old national of India who arrived in Hong Kong on 3 December 2013 with permission to remain as a visitor up to 17 December 2013 when he did not depart and instead overstayed, and on 19 December 2013 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed for having witnessed a murder committed in his home district.  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 barber in a barber shop in his home district.

3.  One day in August 2013 he witnessed a murder committed by a supporter of the political party Communist Party of India (Marxist) (“CPIM”) of a supporter of rival party Trinamool Congress Party (“TMC”) inside his barber shop, and after giving a statement to the police, the CPIM supporter was subsequently arrested and was to stand trial for the murder, but while the Applicant was waiting to be called as a witness to give evidence against the accused at his trial, he started to receive threatening calls from other supporters of CPIM warning him not to give evidence against the accused or else they would kill him, and from the family of the victim threatening to kill him if he failed to do so.     

4.  Thereafter he was beaten by those CPIM people and by the victim family on several occasions, and as he found himself unable to bear the pressure from both sides and fearing for his own safety, the Applicant therefore departed India on 3 December 2013 for Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 5 January 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.  By a Notice of Decision dated 28 February 2018 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 Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), 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 of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be a foreseeable and real risk of harm upon his return to India due to his conflicting evidence of alleged threats and assaults by the CPIM people or the victim’s family which were said to have occurred when he had already left India, that in any event that the level of risk of harm from them is assessed as low due to the absence of or low intensity and frequency of past ill-treatment from them, that in the absence of any official involvement and as a witness to a murder 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 Chennai or Mumbai where it would be difficult if not impossible for those CPIM people or the family of the victim to locate him.

7.  On 8 March 2018 the Applicant 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 25 June 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 27 September 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board found internally incoherencies, inconsistencies and contradictions in the Applicant’s account of his claim given to the Director which he was unable to explain or clarify in his evidence before the Board that are indicative of an account which has no basis in fact and which has been manufactured that it concluded that the Applicant had provided no true information about his circumstances in India and no credence whatsoever can be attached to any of his claim that it failed on all applicable grounds.      

9.  On 2 October 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and put forward the following grounds for his intended challenge:

(1) that the Director and the adjudicator reached their decisions wrongly in assessing his non-refoulement claim in that they were not reasonable or fair as required by the Wednesbury test;

(2) that the adjudicator failed to give him sufficient time and chance to arrange relevant evidence for his non-refoulement claim as well as his appeal;

(3) that the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in his case which had led to an unfair outcome of rejecting his claim;

(4) that the Director failed to take into account of the fact that the Applicant was tortured at the behest of the state law enforcement agencies which would render the state liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(5) that the Director failed to consider or give sufficient weight to those evidence in the listed COI which supported the Applicant’s aversions that the police in his country would not be able to protect;

(6) that the Director failed to consider the fact that corruption and incompetency of the administration in the Applicant’s country is still a very serious problem which various human rights organizations had complied reports on the matter which stated testament to the Applicant’s assertions which was a clear case of unfair attitude shown by the Director which in itself is enough to render his decision void; and

(7) that the Director failed to attain the high standard of fairness required by the Wednesbury test in his decision which should be considered unreasonable in the scope of public law.  

10.  These are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the adjudicator had erred in their decisions, or in what way were their decisions unfair or unreasonable, or what relevancy was state acquiescence to his claim, or how did the Director fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or how did the adjudicator fail to give him sufficient time or opportunity to provide relevant evidence in support of his claim, or how did the Director fail to apply high standard of fairness in assessing his claim.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant.  As such I do not find any of them reasonably arguable for his intended challenge.

11.  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.

12.  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 22 – 31 of its 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.  

13.  Furthermore, the fact that it has been established by the Director in his 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.     

14.  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.

15.  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