MOHAMMAD AAMEEN ALIAS MOHAMMAD-AAMEEN v. TORTURE CLAIMS APPEAL BOARD

HCAL 3747/2019

[2022] HKCFI 2302

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3747 of 2019

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 last arrived in Hong Kong on 1 June 2014 as a visitor with permission to remain up to 4 June 2014 when he did not depart and instead overstayed, and on 31 July 2014 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 by certain local supporters of the political party Shiromani Akali Dal Party (“SAD”) as he supported their rival Aam Aadmi Party (“AAP”). He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Chupkiti, Tehsil & District Moga, Punjab, India. After leaving school he worked in a local medicine store, and also as a decoration worker, and supported AAP by regularly attended their local meetings and rallies.

3.  One day in late 2013 he was approached by 2 local SAD supporters who demanded that he stopped supporting AAP, and when he refused, they warned that he would be harmed.

4.  About one month later those SAD supporters with other men came to the Applicant’s home and attacked him with wooden sticks that he suffered cuts and bruises all over his body, and before they left, they threatened that next time he would be killed.

5.  After he was discharged from hospital for medical treatments, the Applicant became fearful for his life, and so he fled to New Delhi, and on 24 May 2014 he departed India for Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 8 June 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 5 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”).

7.  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 local SAD supporters 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 or reason for them to specifically target the Applicant given that he was just an ordinary AAP supporter without any official post in that party, that in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to upon his return to India, 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 adult with working experience to move to other part of the country away from his home district in large cities such as New Delhi where it would be difficult if not impossible for anyone to locate him.

8.  On 16 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 16 October 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 11 December 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board found significant inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from those local SAD supporters that caused him to flee his country for Hong Kong given the fact that even on his own case at the highest that he was just an ordinary AAP supporter without any official post in the party that there was no reason for the SAD people to specifically target him or to still have any adverse interest in him after all these years since he left the country, 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 for him to move safely to other part of the country without any risk of him being located by anyone that his claim for non-refoulement protection failed on all the applicable grounds.

10.  On 16 December 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date to which he just attached a copy of the decision without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application. As such and in the absence of any error of law or irrationality 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 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 19 – 52 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.  The fact is that it has also 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.

14.  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.  Furthermore, the Applicant recently on 9 June 2022 filed an affirmation requesting to withdraw his application as he has already been granted a dependent visa to stay in Hong Kong but without putting forth any documentary evidence in support of his statement.

16.  In the premises, as I am for the reasons given not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and given his latest request to withdraw his application, 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