SAMIM MALICK alias DIPAK MULLICK v. TORTURE CLAIMS APPEAL BOARD

HCAL 338/2022

[2025] HKCFI 6349

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 338 OF 2022

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 49-year-old national of India who previously in 2000 arrived in Hong Kong under the forged identity of Mullick Dipak and for which he was subsequently convicted and sent to prison for 4 months before being repatriated to India in 2001 when one year later in 2002 that he arrived in Hong Kong again as a visitor under his present identity of Malick Samim, and had since visited on numerous occasions, and in 2010 he married a local resident and was allowed to stay under a dependent visa which he in June 2012 changed to an employment visa, but in December 2012 he was arrested by police for assault, and was identified as a returned deportee under his former forged identity, and for which he was subsequently convicted and sentenced to prison for 16 months. Upon his discharge from prison on 30 November 2013 and was referred to the Immigration Department for deportation, he raised a torture claim later taken as a non-refoulement claim for protection on the basis that if he returned to India he would be harmed or killed by certain local supporters of the political party Trinamool Congress Party (“TMC”) for refusing to join their party or to pay them extortion money. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Khidderpure, Kolkata, India. After leaving school he worked as a technical worker in a local gas company in Kolkata, and supported the political party Communist Party of India (Marxist) (“CPI(M)”) regularly attended their local meetings and activities in his home district.

3.  In or about 2010 some local TMC supporters invited him to join their party, and when he refused they then demanded protection money from him with threats until they were intervened by the Applicant’s neighbours and then left.

4.  Thereafter as he continued to receive threats from the same group of TMC supporters, the Applicant on his mother’s advice later in 2010 departed India again for Hong Kong where he subsequently married a local resident and remained under a dependent visa which he then switched to an employment visa in June 2012, but on 8 December 2012 he was arrested as a returned deportee for which he was subsequently convicted and sentenced to prison for 16 months, and upon his discharge from prison he then raised his non-refoulement claim for protection, for which he completed a Supplementary Non-refoulement Claim Form (“SCF”) on 25 March 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 12 June 2014, 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”).

6.  In his decision, the Director took into account of all the relevant circumstances of the Applicant’s claim and doubted the credibility of his claim due to various inconsistencies and discrepancies in his evidence of fear of harm from any local TMC supporters, that even if his such claim were true that the level of risk of harm from those local TMC supporters upon his return to India was assessed 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 extort money from him or to still have any adverse interest in him after all these years since he left the country, that in any event 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 adult with working experience 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 anyone to locate him.

7.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 10 October 2014 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 10 February 2015 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision[1], the Board found material inconsistencies discrepancies and contradictions in the Applicant’s evidence that it found him utterly dishonest and rejected the credibility of his claim of fear of harm from some local TMC supporters that caused him to seek protection in Hong Kong, that his credibility was further undermined by his various dishonest acts of using different identities to enter Hong Kong and for failing to disclose being a former deportee under a forged identity, that even if his account of events prior to his departure of India were true that there was no evidence that he had ever suffered any injury by those TMC supporters or any real intention of them to seriously harm or kill him other than to press him to pay extortion money, and that in any event in the absence of any official involvement that state or police protection would be available to the Applicant upon his return to India as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located by those TMC supporters that his claim for non-refoulement protection failed on all applicable grounds.

9.  Meanwhile on 23 December 2016 the Director on his own initiative invited the Applicant to submit any additional facts which he may consider relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute and non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2”), and in the absence of any reply or response from him, the Director by a Notice of Further Decision dated 10 January 2017 also rejected the Applicant’s BOR 2 Claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR including right to life under BOR 2 being violated upon his return to India.

10.  The Applicant never brought any appeal to the Board against this Further Decision of the Director, and more than 5 years later on 13 May 2022 he filed his Form 86 for leave to apply for judicial review of the Board’s decision of 10 February 2015, and apart from repeating his claim as before and citing various applicable law and legal principles in his Form, he put forward various grounds or complaints against the Board’s decision which can be summarized as follows:

(1)  That the Board erred in law in applying the wrong test for BOR 3 risk by applying too high the threshold to prove risk of bodily harm or intense physical or mental suffering;

(2)  That the Board wrongly applied the test under CAT Article 1 to BOR 3 in failing to distinguish the prohibited acts of “torture”, “cruel”, “inhuman” and “degrading” as distinct violations in its erroneous analysis of the Applicant’s claim and in analyzing CIDTP as one general category in a manner identical with torture, and failed to appreciate the differences between the prohibited acts entirely

(3)  That the Adjudicator failed to take account the fact that the non-state actors action was actually acquiesced and condoned by state actors as they belonged to the same political party;

(4)  That the Board erred in law in failing to consider BOR 2 risk in its assessment of the Applicant’s claim;

(5)  That there was procedural impropriety in that the Board conducted insufficient analysis and inquiry into COI such that the conclusion reached was Wednesbury unreasonable and failed to give reason why the factors suggesting “positive results in the reforms in recent years in India” had overweighed the COI which the Adjudicator cited to be capable of supporting the Applicant’s assertion;

(6)  That there was procedural impropriety in the Board’s failure to analysis the Applicant’s evidence in a fair and proper manner and/or Wednesbury unreasonableness in the assessment of the Applicant’s credibility by over-lying on the Applicant’s conviction in Hong Kong and drawing prejudicial inferences against the Applicant’s credibility and in failing to explain why and how the Applicant’s behavior showed that he was not a genuine claimant and by over relying on trivial inconsistencies in the Applicant’s evidence.

11.  By then the Applicant was clearly 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 day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

12.  As the last day of the three-month period for him to file his Form 86 as regard the Board’s decision of 10 February 2015 fell on 10 May 2015, the Applicant was therefore some 7 years 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 merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

13.  In the Applicant’s case, a delay of 7 years must be considered as extremely substantial and inordinate, for which he explained in his affirmation that he was then going through a lot of different problems and troubles in his life including his divorce, and that he needed time to seek funding and to obtain legal advice, of which even if all were true that they cannot in my view be accepted as proper justifications for his such serious delay.

14.  As for the merits, if any, of his intended application, those grounds put forward by the Applicant are all just some bare and vague assertions containing a few key words or phrases but without any necessary or relevant 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 was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy were state acquiescence in the absence of any acceptable evidence of any official involvement, while the Board was clearly entitled under Section 37ZD of the Immigration Ordinance to take into account of his various acts and behavior of dishonesty as noted above as damaging his credibility in its determination of his claim. 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, while his complaint of the absence of any assessment of his BOR 2 Claim is clearly without basis as at the time of his appeal to the Board the Director had not yet considered his BOR 2 Claim which only came later in the Director’s Further Decision of 10 January 2017 but of which the Applicant never brought any appeal to the Board. In any event on the factual basis of even his own case that his claim simply did not engage the BOR 2 ground, as correctly pointed out by the Director in his decision.

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 been established by both the Director and the Board in their respective decisions that the risk of harm in his 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.  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.

18.  Moreover, the Applicant recently on 30 October 2025 in writing requested to withdraw his application as his problems in his home country have already been resolved that he now wants to return to India.

19.  For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation of no more problem for him to return 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