RAHMAN ATIK v. TORTURE CLAIMS APPEAL BOARD

HCAL 48/2020

[2025] HKCFI 3779

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 48 OF 2020

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 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 31-year-old national of India who arrived in Hong Kong on 6 September 2016 as a visitor with permission to remain as such up to 20 September 2016 when he did not depart and instead overstayed. On 20 September 2016 he surrendered to the Immigration Department for investigation and raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his former girlfriend’s family who objected to their relationship. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised as a Sunni Muslim in Kidderpore, Watgunge, Kolkata, India. The Applicant formed a relationship with a girl from a different Muslim caste, and in June 2016 they eloped to Darjeeling for 2 days before returning home. When her family later found out about their relationship they disapproved it due to their different castes and came to the Applicant’s home with the police, alleging that he has kidnapped her, but the police has never taken any further action.

3.  One day in August 2016 while he was in Kolkata, the Applicant was attacked by his girlfriend’s brother and his friends with a baseball bat that he sustained injuries to his head which required medical treatment at the local hospital. He went to the police to report the assault but instead he was accused of initiating a public fight instead. His girlfriend’s family also made threats to kill him in addition to the assault.

4.  The Applicant became fearful for his life and in September 2016 he departed India for Hong Kong where he subsequently overstayed and then raised his non-refoulement claim for protection upon his surrender to the Immigration Department, for which he completed a Non-refoulement Claim Form (“NCF”) on 6 July 2018 and attended screening interview before the Immigration Department with legal representation.

5.  By a Notice of Decision dated 19 July 2018 the Director of Immigration (“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 assessed the level of risk of harm from his girlfriend’s family upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill him other than to put pressure on him to stay away from his girlfriend, that in any event it was a private relationship dispute between them 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 good education to move to other areas of the country away from his home district in large cities such as New Delhi or Mumbai where it would be difficult if not impossible for his girlfriend’s family to locate him.

7.  On 30 July 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 2 August 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 24 December 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision the Board found inconsistencies and contradictions in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from his girlfriend’s family that caused him to leave his country to seek protection in Hong Kong, and that in any event if such risk is real that it only arose from a private personal dispute without any official involvement that state or police protection would be available to the Applicant upon his return to India that his claim for non-refoulement protection failed on all applicable grounds.

9.  On 6 January 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his Form and supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  That the Board was in breach of procedural unfairness by unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirements;

(2)  That the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(3)  That the Board’s decision to refuse the Applicant’s appeal was unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(4)  That the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5)  That he was not provided with legal representation for his appeal before the Board;

(6)  That the Applicant was not given sufficient language assistance in his appeal before the Board that it was difficult for him to understand the nature of his appeal process, and that during his appeal hearing that he was merely asked a few questions, while the subsequent decision was just sent to him by post without any interpretation or translation or legal assistance; and

(7)  That the hearing bundle for his appeal before the Board was provided to him without any legal assistance or translation with the majority of the documents in English which is not his first language that it was procedurally unfair to the Applicant as a litigant in person without legal representation.

10.  These are however all just bare and vague assertions of the Applicant containing a few key words or phrases but without any particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way did the Board unlawfully fetter its discretion or acted in a procedurally unfair manner or that the decision was unreasonable or irrational, while the record shows that the Applicant was not assisted by an interpreter in his oral hearing before the Board during but nonetheless he was able to make his representations without difficulty and to answer many questions from the Adjudicator for the Board without any issue. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for his intended challenge

11.  For his complaint in Ground (5) of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v 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.

12.  The Applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal hearing before the Board and to answer questions put to him by the Adjudicator without any difficulty. In the circumstances I do not find anything amiss arising from the lack of legal representation in his appeal process, nor do I find this ground reasonably arguable for his intended challenge.

13.  For his complaint in Grounds (6) and (7) which the Applicant appeared to have made with some elaboration was about the hearing bundle being provided to him before his appeal hearing before the Board in which all the documents are in English which he could not read and without proper translation to enable for him to have a better understanding to prepare for his appeal.

14.  While it is true that there was no requirement for the Director to provide translations of all documents, and I accept that the Applicant may not be able to read English, but I also note that most of the documents including his NCF, records of his screening interviews and the Director’s decision should all be well familiar to him as they had earlier all been made available to him when he still had legal representation, whilst his NCF was completed on his own instructions with legal assistance, and that at his oral hearing he never raised any issue or requested the Adjudicator for translations of those documents or for further time to enable him to better prepare for his appeal. In fact as evidenced in the decision, when he was invited by the Adjudicator to address the Board regarding his claim or appeal, he was able to confirm the truthfulness and correctness of the contents of his NCF and records of his screening interview, and to make his representations to the Board without being assisted by an interpreter at the appeal hearing. As such, I do not find anything amiss arising from the appeal bundle provided to the Applicant for his appeal before the Board when he was assisted by an interpreter but chose not to say anything or raise any issue.

15.  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.

16.  In the Applicant’s case, the fact is that it has also been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim even if real 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 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.

18.  Moreover, the Applicant recently on 20 June 2024 wrote to request to withdraw his application as his problem in India has been resolved that he now wants to return to his home country, and he subsequently did as confirmed by the Director.

19.  In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and given that he has subsequently returned to his home country, I 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