MOHAMMAD WAKIL v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 965/2017

[2019] HKCFI 1031

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 965 of 2017

 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 38-year-old national of India who last arrived in Hong Kong on 11 September 2006 with permission to remain as a visitor up to 15 September 2006 when he did not depart and instead overstayed until 12 March 2009 when he was arrested by police.  After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to India he would be harmed or killed by the family of his sister-in-law for his brother’s ill-treatment of her and/or by his creditor for failing to repay his loans. After his torture claim was rejected, he raised a non-refoulement claim for protection on the same basis, and has since been 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 salesman first in Nepal and later in Kolkata.  In 2001 his eldest brother Rahis married his wife Jamila and moved to live in the applicant’s family home.

3.  One day in the summer of 2001 Rahis had an argument with Jamila’s two elder brothers over his treatment of Jamila that they demanded that Jamila should leave him to return to her own family, and when Rahis refused, Jamila’s brothers then left angrily.

4.  Several days later her brothers came and took Jamila away, and when Rahis asked her to return, Jamila refused.  They had since lived apart.

5.  Later in the same year the applicant borrowed a loan from a money-lender for his personal use.  In 2002 he travelled to Hong Kong at the request of his former employer to purchase goods for their garment business where he overstayed for two years before he was subsequently arrested by police and was repatriated to India.

6.  One day in 2005 Rahis and the rest of the applicant’s family were arrested by the local police for mistreating Jamila after her family had brought a court case against him and his family.  Although the rest of the family were later released by the police, Rahis was detained for more than a month during which Jamila’s brothers had come to the applicant’s home to remove all her belongings including her wedding jewellery.

7.  Eventually Rahis was released on bail and told the applicant that he had been tortured by the police and that he feared for his life.  With the applicant’s assistance he later departed India and fled to Hong Kong.

8.  After Rahis’s departure, Jamila’s brothers came looking for him, and when the applicant refused to tell them where Rahis was, they slapped him on the face before leaving angrily.

9.  Several months later Jamila’s brothers with several men came to the applicant’s place of work and demanded him to disclose Rahis’s whereabouts, and when he refused, they started hitting him with wooden sticks but when some passers-by tried to intervene, the applicant managed to escape from the scene.

10.  A few months later Jamila’s brothers again came to the applicant’s place of work for Rahis’s whereabouts, and when the applicant refused to disclose any information, they attacked him by punching and kicking him until they were stopped by his employer, and the applicant was subsequently to the hospital for a fractured clavicle.  

11.  At about the same time his creditor was also pressing him for repayment of his loan, and when he was unable to do so, his creditor started to threaten him with violence.  Due to the threats from both his creditor and Jamila’s family, the applicant decided that it was no longer safe to remain in India, and so in September 2006 he departed for Hong Kong where he subsequently overstayed and raised his torture claim, and after it was rejected he sought non-refouolement protection by completing a Supplementary Claim Form on 21 January 2016 and attended screening interview before the Immigration Department with legal representation form the Duty Lawyer Service.

12.  By a Notice of Decision dated 23 August 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim on all then applicable grounds other than risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), namely risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“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”).

13.  In his decision the Director took into account all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm from Jamila’s family or his creditor to the applicant upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that his disputes with them were private family or monetary matters 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 2.9 million square kilometers that it would not be unduly harsh for the applicant as an able-bodied adult with work experience to move to other part of India away from his home district in large cities such as New Delhi where it would be difficult if not impossible for Jamila’s family or his creditor to locate him.

14.  By a Notice of Further Decision dated 14 June 2017 the Director again rejected the applicant’s claim after receiving and considering further submissions of the applicant relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

15.  By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 2 September 2016, and for which he attended an oral hearing on 23 October 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 24 November 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

16.  In its decision the Board found those alleged police and court documents produced by the applicant in support of his claim of threats from Jamila’s family contained all sorts of errors that they are wholly unreliable that it was not accepted that he was ever involved in any court case instigated by Jamila or her family, or that he would be killed by his creditor as his claim was not found credible, and that in any event state protection as well as reasonable internal relocation would be available to the applicant to move safely to many other places in India should he continue to be fearful of staying in his home district.

17.  On 28 November 2017 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in his Form, nor in his affirmation of the same date in which he merely repeated his claim of his life being in danger in his home country.  In the absence of any legal error or procedural unfairness in the decisions being shown by the applicant, I am unable to see any prospect of success in his intended challenge. 

18.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim, as 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 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 Re Litoun Mounsy [2018] HKCA 537.

19.  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 §§13 – 20 of its decision after having had the benefit of hearing him in evidence and in his answer to questions raised of his claim, and in the absence of any legal error or procedural unfairness being shown by the applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

20.  Furthermore, the fact is that it has been established by both the Director and the Board in their respective 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, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

21.  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.

22.  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