KHAN MOHAMMAD IRFAN v. TORTURE CLAIMS APPEAL BOARD

HCAL 1693/2020

[2022] HKCFI 1955

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1693 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 37-year-old national of India who arrived in Hong Kong on 13 April 2012 as a visitor with permission to remain up to 27 April 2012 when he did not depart and instead overstayed, and was arrested by police almost 5 years later on 7 January 2017. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by the local supporters of the political parties Samajwadi Party (“SP”) and/or Bharatiya Janata Party (“BJP”) as he supported their rival All India Council for Union of Muslims (“AIMIM”). He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Chitra, Etah, India. After leaving school he worked as a tailor in his home village, and supported AIMIM in their promotion of the rights and welfare of Muslims, of which he was one, by regularly attended their local meetings and rallies, during which he and his fellow AIMIM supporters frequently came into violent conflicts with SP and BJP supporters.

3.  After one particular violent attack by several SP supporters in 2012 that he was knocked unconscious and was subsequently taken to the hospital for medical treatment, the Applicant became fearful for his life and fled to Punjab to take shelter in his uncle’s place, and on 12 April 2012 he departed India for Hong Kong where he subsequently overstayed, and after his arrest by the police almost 5 years later he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 20 July 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

4.  By a Notice of Decision dated 10 August 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”).

5.  In his decision the Director took into account of 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 those SP or BJP supporters upon his return to India due to the low intensity and frequency of past ill-treatment from them, that there was no evidence or reasons for them to specifically target the Applicant given that he was just an ordinary AIMIM supporter with no official post in the party or that there would still be any adverse interest in him after all these years since he left the country, 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 2.9 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 part of India away from his home district in large cities such as New Delhi where it would be difficult if not impossible for those SP or BJP people to locate him.

6.  On 23 August 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 18 December 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 14 July 2020 his appeal was dismissed by the Board which also confirmed the decision of the Director.

7.  In its decision the Board found the Applicant’s evidence as to his claimed involvement in AIMIM and threats from SP and BJP supporters extremely vague, contradictory and lacking in any detail that it doubted the credibility of his claimed fear of harm from them that caused him to leave his home country for protection in Hong Kong, which was further undermined by his failure to raise his claim upon his first arrival until almost 5 years later and only after his arrest by the police that it did not find him to be a witness of truth and that no credence can be given to any of his claims that it concluded that his claim for non-refoulement protection failed on all applicable grounds.    

8.  On 20 August 2020 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, and in his supporting affirmation of the same date he just repeated his claim as before that there is no protection from the state or police unless bribes are being paid and that internal relocation would not be available to him as he has no money or education but without putting forth any proper ground for his intended challenge, as his claim was essentially rejected by the Board on its adverse finding against his credibility that it did not find it necessary to consider either issues of state protection or internal relocation in its determination of his claim, of which the Board was perfectly entitled in the circumstances to do so. As such I do not find these complaints of the Applicant reasonably arguable for his intended challenge, 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, nor do I find any basis for his intended application.

9.  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.

10.  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 18 – 30 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.  

11.  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 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.                

12.  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.

13.  Furthermore, the Applicant recently in writing requested to withdraw his application as his problem in his home country no longer exists and that it is safe for him to return to India.

14.  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 confirmation that it is now safe 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