ABBAS MD ARSHAD v. TORTURE CLAIMS APPEAL BOARD

HCAL 1648/2020

[2021] HKCFI 414

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1648 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 25-year-old national of India who arrived in Hong Kong 28 August 2018 when he was found to be in possession of dangerous drugs for which he was subsequently convicted and sentenced to prison for 28 months, and upon his discharge from prison and was transferred to the Immigration Department for deportation, he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by the person who hired him to deliver the luggage containing the drugs which were confiscated during his arrest and/or by his local community as he is a Muslim. 

2.  The Applicant was born and raised as a Muslim in Kolkata, India. After leaving school he worked as a goods courier, and in August 2018 he was hired by a wealthy businessman to deliver a luggage to clients in Hong Kong, but when he arrived in Hong Kong with the luggage, it was found to contain the illegal drug Marijuana for which he was subsequently convicted and sentenced to prison for 28 months.     

3.  After his family heard about his arrest, his father in Kolkata made a complaint to the local police against the wealthy businessman, for which the businessman became furious and threatened to kill the Applicant for ruining his reputation upon his return to India, and so after his discharge from prison and was transferred to the Immigration Department for deportation, the Applicant became fearful that if returned to India he would be harmed or killed by the businessman and/or the local community for being a Muslim, he therefore raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 13 May 2020 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.     

4.  By a Notice of Decision dated 12 June 2020 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 (“the Ordinance”) (“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 and substantial risk of him being harmed or killed by the businessman or by the local community for being a Muslim upon his return to India due to the absence of or low intensity and frequency of past ill-treatment from them, that it is doubtful in the circumstances that the businessman would have any real intention of causing any harm to the Applicant, that there is no evidence at all of any threats from anyone in the local community against the Applicant for being a Muslim and given his admission of having a happy life without any incidents in his home district prior to his departure of India, that in any event in the absence of 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 1.3 billion people spread across a vast territory that it would not be unduly harsh for the Applicant as an able-bodied young man with working experience to move to other part of India away from his home district in large cities such as Delhi or Mumbai where it would be difficult if not impossible for his perceived enemies to locate him.

6.  On 6 July 2020 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, but as he was outside the 14-day period within which he was required to file his notice of appeal by section 37ZS of the Ordinance, the Board proceeded under section 37ZT of the Ordinance to decide as a preliminary decision without a hearing whether to allow the late filing of the Applicant’s notice of appeal.

7.  By a Decision dated 3 August 2020 the Board refused to allow the late filing of the Applicant’s notice of appeal upon finding that he was 7 days late with his notice of appeal but without providing any reason for the delay, and in evaluating all the circumstances of his case known to the Board as well as the merits of his appeal, the Board found no evidence that the Applicant had ever been threatened by the local community due to the fact that he was a Muslim which was also inconsistent with his assertion that he had a happy life in India before he came to Hong Kong, nor is there any evidence that the businessman was powerful or influential anywhere outside his community or the Applicant’s home district that state/police protection would be available to the Applicant upon his return to India as well as reasonable internal relocation for him to move safely to other area away from his home district without any risk of being located that it was not satisfied that he has a meritorious claim or that there are any special circumstances that it would be unjust not to allow the late filing of his notice of appeal.       

8.  On 13 August 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no proper ground for seeking relief was given in his Form or in his supporting affirmation of the same date in which he merely stated that he would only be able to submit more documents upon his release but without stating what they are or their relevancy, nor did he put further any proper ground for his intended challenge. As such and in the absence of any error of law or irrationality or procedural unfairness in the Board’s decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

9.  It is clear in its decision that the Board in refusing to allow the Applicant’s late filing of his notice of appeal did correctly take into account of all those matters set out under section 37ZT(2) of the Ordinance, as well as the merits of the appeal as held to be necessary by the Court of Appeal in Re Qasim Ali [2019] HKCA 430, CACV 547/2018, 8 April 2019, and that it was entitled to find of no special circumstances in the Applicant’s case that it would be unjust not to allow the late filing of his appeal.     

10.  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.     

11.  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.

12.  On 26 November 2020 and 2 December 2020 the Applicant wrote to the court to request to close his leave application as he wants to return to his home country as soon as possible.

13.  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 close his case so that he can go home, I accordingly accede to his request and 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