ABDUL RASHID alias RASHID ABDUL v. TORTURE CLAIMS APPEAL BOARD

HCAL 2338/2023

[2024] HKCFI 2188

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2338 OF 2023

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 / 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 47-year-old national of India who last arrived in Hong Kong on 29 October 2022 as a visitor with permission to remain as such up to 12 November 2022 when he did not depart and instead overstayed, and some 3 weeks later on 5 December 2022 he surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if he returned to India he would be harmed or killed by 3 customers for failing to deliver goods to them under their business deals. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Khiddirpora, Kolkata, West Bengal, India. After leaving school he ran his own logistic business transporting goods or cargoes from China and Thailand to India for his customers, got married and raised a family with 2 children in his home district.

3.  In 2019 the Applicant was hired by 3 customers to travel to China to arrange for their cargoes to be transported to Kuming and then from there to be shipped to India, but while the cargos were being stored in Kuming pending shipping to India, the Covid-19 pandemic broke out that their arranged transportation was suspended, and by 2020 when the Applicant was still unable to arrange for those cargoes to be transported to India, his 3 customers became furious with him and started to demand for compensations, and for which the Applicant pleaded for more time to resolve the problem.

4.  By the end of 2020 when his customers lost their patience with the Applicant and started to make threats against him, the Applicant fled to Darbhanga Bihar to take shelter in a relative’s place, and on 29 October 2022 he travelled to Hong Kong for other business, during which he was told by his wife in India that those 3 customers had come to his home threatening to kill him, he became fearful for his life and was afraid to return to India, and so he overstayed in Hong Kong and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 9 February 2023 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 6 March 2023 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”).

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 those 3 customers/financiers upon his return to India as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill him, that in any event it was a private monetary or business dispute between them only 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 1.4 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 areas of the country away from his home district in large cities such as New Delhi or Mumbai where it would be difficult if not impossible for anyone to locate him.

7.  On 16 March 2023 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 22 September 2023 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 17 November 2023, his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from those 3 customers/financiers that caused him to overstay in Hong Kong to seek protection, that there was no reliable evidence of any threats from anyone against the Applicant other than his bare and uncorroborated assertions that the Board rejected as incredible his account of events occurred in India prior to his departure for Hong Kong or of any business deals between him and his customers for the transportations of goods or cargoes that had been detained in China due to the Covid-19 pandemic or any threats being made against him by any customers that it rejected his claim as incredible and implausible and concluded that his non-refoulement claim for protection failed on all applicable grounds.

9.  On 27 December 2023 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 reached the decision wrongly in assessing his non-refoulement claim as the decision was not fair or reasonable as required by the Wednesbury test in failing to recognize that his life must be protected by the criminal law from extra-judicial killings that he may face if deported back to his home country;

(2)  That the Board failed to appreciate or place proper or sufficient weight or importance to the presence of State Acquiescence in his case which led to an unfair outcome of rejecting his claim without realizing that he was tortured at the behest of the state law enforcement agencies and politicians that the state would be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(3)  That the Board had listed relevant COI which supported the Applicant’s aversions that the police in her country would not be able to protect but failed to consider or give sufficient weight to such evidence and instead ruled otherwise against the Applicant’s case which was a clear case of unfair attitude shown by the Board which in itself is enough to render its decision void; and

(4)  That the Board failed to attain the high standard of fairness required by the Wednesbury test in failing to take into account the Applicant’s argument that corruption and incompetency of the administration in the Applicant’s country is still a very serious problem as various human rights organizations had compiled reports that stated testament to the Applicant’s assertions.

10.  These are however all just some bare and vague assertions containing a few key words or phrases but without any relevant or necessary particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy were state acquiescence or extra-judicial killings to the Applicant’s case or what evidence is there to suggest that the Applicant has ever been tortured by law enforcement agencies or politicians when on the factual basis of even his own case that it was a private business dispute between him and his customers/financiers only without any official involvement or political element at all. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable 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 55 – 84 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.  Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, a decision also agreed and 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.

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.  Moreover, the Applicant recently on 24 June 2024 filed an affirmation requesting to withdraw his application as the problem which he had in his home country has been resolved that he now wants to return to India.

16.  In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation of no more problem for him to return to his home country, 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