MD ZAKIR v. TORTURE CLAIMS APPEAL BOARD

HCAL 1870/2018

[2022] HKCFI 914

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1870 of 2018

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;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 35-year-old national of India who last arrived in Hong Kong on 20 August 2014 as a visitor with permission to remain up to 3 September 2014 when he did not depart and instead overstayed, and was arrested by police on 12 September 2014. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his girlfriend’s family who opposed their relationship. He was subsequently being released on recognizance pending the determination of his claim. 

2.  The Applicant was born and raised as a Muslim in Kidderpore, Kolkata, India. After leaving school he worked in various jobs, and in about 2011 started to date a Hindu girl from the same neighbourhood, but due to their different religions they kept it a secret from her family.

3.  However, shortly after their relationship had been discovered by his girlfriend’s family in August 2013, the Applicant was confronted by his girlfriend’s brother and several other men who demanded that he stopped seeing his sister, to which the Applicant pretended to agree, but continued thereafter to meet with his girlfriend secretly.  

4.  On 19 August 2014 the Applicant travelled to Hong Kong for business, during which he was informed by his mother from India on the phone that his girlfriend’s brothers had come to her home with some men looking for him, and when they could not find him, they assaulted her and his sister and damaged their household items, and before they left they threatened to kill him upon his return to India. As a result, his mother advised him not to return to India to save his life, and so he overstayed in Hong Kong, and after his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 8 August 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 30 August 2017 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 and non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) 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 his dispute with them was a private personal matter 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 working experience to move to other area away from his home district in large cities such as Mumbai where it would be difficult if not impossible for his girlfriend’s family to locate him.   

7.  On 11 September 2017 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 10 May 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 24 August 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board found serious inconsistencies, discrepancies and contradictions in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from his girlfriend’s family over their relationship which had been further undermined by his failure to raise his claim as soon as practicable until after his arrest by the police, that it was in any event if true was a private personal dispute without any official involvement that state/police protection would be available to the Applicant 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 that his claim for non-refoulement protection failed on all applicable grounds. 

9.  On 7 September 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

 (1)  That the Board erred in failing to maintain high standards of fairness by not holding an oral hearing for the Applicant’s appeal to allow him the opportunity to put forward his case;

 (2)  That the Board applied only the minimum standards of procedural fairness in its decision-making process and the duty to act fairly; and

 (3)  That the Board failed to take into consideration that the Applicant was not provided with legal representation and/or to advise him that he could complain.   

10.  The Applicant’s complaint under Ground (1) of not being provided with any oral hearing for him to present his case before the Board is clearly factually incorrect as both the record and the decision show that the Applicant did attend an oral hearing on 10 May 2018 before the Board during which he was able to make full representation of his claim with the assistance of an interpreter to the Board. As such there is simply no proper basis for this complaint of the Applicant that it must be rejected.    

11.  As for his complaint under Ground (2) that the Board failed to apply procedural fairness or to act fairly, the Applicant did not provide any details or particulars or elaboration to corroborate such bare assertions, and having scrutinized the Board’s decision, I do not find any basis for this complaint of the Applicant either.   

12.  As regard his complaint under Ground (3) of not being provided with 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.

13.  The Applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation of his claim in his appeal hearing before the Board and to answer questions put to him by the Adjudicator without difficulty. 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 either.

14.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an 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 risk of harm is primarily a matter for them 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.

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

16.  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.

17.  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