SHEIKH TAJUDDIN v. TORTURE CLAIMS APPEAL BOARD

HCAL 2254/2020

[2021] HKCFI 1229

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2254 of 2020

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 32-year-old national of India who arrived in Hong Kong on 12 December 2008 with permission to remain as a visitor up to 26 December 2008 when he did not depart and instead overstayed and was arrested by the police on 12 January 2009. 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 his girlfriend’s family who opposed their relationship, and after it was rejected, he then sought non-refoulement protection on the same basis. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised as a Muslim in Kolkata, India. After leaving school he made his living trading in electronic goods in his home district, and courted a Hindu girlfriend from a wealthy family in the same district.

3.  In November 2005 he was approached by his girlfriend’s elder brother who demanded that he stopped the relationship as his family were against them seeing each other due to their different religions and social status, and when the Applicant refused, he was attacked several days later by his girlfriend’s brother and followers with hockey sticks and he suffered bruises all over his body which required medical treatments in the local hospital.

4.  Later in August 2008, the Applicant heard that his girlfriend had committed suicide after being forced to marry another man chosen by her family, and for which they blamed the Applicant and threatened to take revenge against him.     

5.  As a result the Applicant became fearful for his life, and so on 12 December 2008 he departed India for Hong Kong where he subsequently overstayed, and upon his arrest by the police he raised his torture claim, and after it was rejected he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 4 June 2018 and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

6.  By a Notice of Decision dated 29 June 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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 all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real risk of him being harmed or killed by his former girlfriend’s family upon his return to India due to the low intensity and frequency of past ill-treatment from them, that it was a private personal dispute between 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”) shows 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 parts of India away from his home district in large cities such as Delhi where it would be difficult if not impossible for his former girlfriend’s family to locate him.

8.  On 9 July 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but before his appeal was heard the Applicant on 5 June 2019 wrote to the Board to withdraw his appeal, and upon further enquiries with the Applicant and being satisfied that his application to withdraw his appeal was freely sought, that he understood the consequences of the withdrawal, and that there was good reason for his proposed withdrawal as he considered that it would be safe to return to his home country, the Board by a decision dated 25 June 2019 directed that the Applicant’s appeal be withdrawn and that the Director’s decision be confirmed.

9.  However, more than one year later on 12 November 2020, the Applicant filed a 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, and in his supporting affirmation of the same date he merely stated that the problem which he had back home has started again and hence his life would still be in danger in his home country, and that he should therefore be allowed to “re-open” his claim.

10.  By then the Applicant was also seriously out of time with his application, as Order 53 rule 4(1) of the High Court Ordinance, Cap 4 requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

11.  As the last day of the three-month period for the Applicant to file his Form 86 fell on 25 September 2019, he was therefore more than 13 months 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 HKCA 393.

12.  In the Applicant’s case, a delay of more than 13 months must be considered as very substantial, for which as noted above he did not provide any explanation other than a bare assertion that his problem in his home country has started again, and in the absence of any further details or elaboration or documentary evidence to corroborate his bare assertion, I am not satisfied that the Applicant has provided any good reason for his serious delay.

13.  As for the merits, if any, of his intended application, as the Board had as noted above clearly and properly found his appeal to have already been validly withdrawn as a result of a deliberate and informed decision on his part, and hence his appeal is no longer extant and the Board had become functus officio with no further jurisdiction to take any further step regarding the appeal including either to re-open or to reinstate it before the Board: see Ali Usman [2018] HKCA 955; and Das Purnima Rani [2019] HKCA 669. As such I do not find any merits or basis in his intended application or intended challenge against the Board’s decision.   

14.  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.

15.  In any event, 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 parts of India, a decision also confirmed 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.     

16.  Furthermore, the Applicant recently on 7 April 2021 filed an affirmation requesting to withdraw his application as he wants to go back to his home country.

17.  In the premises, and as I am not satisfied for the reasons given that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation of his wish to withdraw his application and to return to his home country, I accede to his request and 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