SHAIKH SHAMIM v. THE ADJUDICATOR OF THE NON-REFOULEMENT CLAIMS PETITION OFFICE APPOINTED TO DETERMINE THE APPLICANT’S PETITION AND ANOTHER

HCAL 559/2018

[2019] HKCFI 1937

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 559 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 the Applicant in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 33-year-old national of India who arrived in Hong Kong on 29 November 2014 with permission to remain as a visitor up to 13 December 2014 when he did not depart and instead overstayed until he was arrested by police on 9 February 2015.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim for protection on the basis that if he returned to India he would be harmed or killed by his creditor for failing to repay his loan.  He was subsequently released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Kidderpore, Kolkata, India, and worked in various jobs in Kolkata.  In mid-2011 he started his own business in selling cosmetic products and electronic goods in Kolkata by borrowing 2 million Indian rupees from a childhood friend Sunny who was a successful businessman with political connections, for which the applicant was not required to pay any interest and there was no deadline for repayment but until it was repaid he was to pay a share of his monthly profit to Sunny.

3.  For the first few years the business was good and the applicant was able to make monthly payment to Sunny for his share of the profit.  However, in about 2014 when one of his major customers failed to pay for goods already supplied to him, the applicant started to experience cash flow problem and his business started to deteriorate, and as a result he stopped making any payment to Sunny.

4.  By mid-2014 Sunny became impatient with the applicant’s business and started to call in his loan, and when the applicant was unable to do so, Sunny lost his temper and on one occasion slapped the applicant on his face.  Thereafter the applicant avoided him by staying at his aunt’s place and refused to answer his telephone calls.

5.  About one month later one evening Sunny came with several men and demanded that the applicant go with him to his home for discussion about his loan, but as soon as the applicant was brought there he was hit by Sunny and his men with hockey sticks all over his body, and when the beating stopped after half an hour, he was locked in a room.

6.  Three days later the applicant was released with a warning from Sunny that if he failed to repay his loan soon, he would be killed.  Upon returning home the applicant felt that his life was in danger, but he did not go to the police for help as he believed they would be under the influence of Sunny.  Instead he went to visit some of his friends in Hong Kong to learn about business opportunity there in the hope that he might re-start his business.

7.  Several days later he returned to India, but soon he ran into Sunny and his men in Kolkata, and when he saw them carrying knives and choppers, he immediately ran away and hid in his aunt’s place before departing India again on 28 November 2014 for Hong Kong where he subsequently overstayed and raised his non-refoulement claim, for which he later completed a Non-refoulement Claim Form on 24 October 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

8.  Whilst released on recognizance pending determination of his claim, the applicant was arrested by police on 21 April 2017 for drug trafficking, for which he was later convicted and sentenced to 16 months’ imprisonment.

9.  By a Notice of Decision dated 14 November 2017 the Director of Immigration (“the 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 (“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”).

10.  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 his creditor to the applicant upon his return to India as low due to the low intensity and frequency of past ill-treatment from him, that his creditor had no real intention to seriously harm or kill him as he only wanted to recover his money from the applicant, that it was a private monetary dispute between the two of 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 work experience to move to other part of India away from his home district in large cities such as Mumbai or Bangalore where it would be difficult if not impossible for his creditor to locate him.

11.  On 23 November 2017 the applicant filed an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 15 March 2018 before the Board but declined to give any evidence or to answer any questions from the adjudicator for the Board despite being explained and advised that he should do so to clarify various issues raised in respect of his claim.  On 22 March 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

12.  In its decision the Board found the applicant’s refusal to give evidence or answer questions at the hearing failed to alleviate the concerns over his credibility due to his failure to raise his claim upon his arrival in Hong Kong until almost three months later after he was arrested, and that he failed to discharge his burden of establishing that he faces a real risk of harm that would warrant international protection on the basis of the materials available before the Board, and concluded that his claim failed on all applicable grounds. 

13.  On 4 April 2018 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and put forward the following grounds for his intended challenge:

(1)  that the Director and the adjudicator reached their decisions wrongly in assessing his non-refoulement claim;

(2)  that their decisions were not reasonable or fair as required by the Wednesbury test;

(3)  that they failed to take into consideration that the right to life must be protected from extra-judicial killings that he may face if deported to his home country; and

(4)  that the adjudicator failed to give him sufficient time and opportunity to arrange relevant evidence for his non-refoulement claim and appeal.  

14.  The applicant did not attend the first scheduled oral hearing of his application, for which he later wrote a letter to explain that he did not receive the Court’s notice of hearing, and requested for another oral hearing.  At the re-scheduled hearing he did appear and confirmed his proposed grounds for his intended application without making any further representation or submissions.    

15.  A careful examination of his grounds however reveals that they are all just broad and vague assertions of the applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the adjudicator had erred in their decisions, or in what way were their decisions unfair or unreasonable, or what relevancy were extra-judicial killings to his claim, or how did the adjudicator fail to give him sufficient time or opportunity to produce his evidence in support of his claim.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant, and in the absence of any legal error or procedural unfairness being clearly and properly identified in the decisions by the applicant, I do not find any basis or merits in any of his complaints, nor do I find any of them reasonably arguable for his intended challenge.

16.  As has been repeatedly emphasized by the Court of Appeal, 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.

17.  In the present case, the applicant declined the opportunity to give evidence or to answer questions from the Board in order to substantiate and clarify his claim despite the adjudicator’s advice and invitation for him to do so, and as such the Board was entitled to, as it did in its decision, reject his claim on the basis of the materials available to it on its adverse finding as to his credibility, and in the absence of any legal error or procedural unfairness in the Board’s decision being clearly and properly identified by the applicant, I do not find any reasonably arguable basis to challenge such findings of the Board.

18.  Furthermore, the fact is that it has been established by the Director in his 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, a decision also affirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

19.  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.

20.  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