NAUSHAD MOHAMMED v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 1399/2019

[2022] HKCFI 3006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1399 of 2019

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;

1.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 13 July 2018 refused; and

2.  the application for leave to apply for Judicial Review dismissed.

Observations for the Applicant:

1.  The Applicant is a 46-year-old national of India who had previously twice entered Hong Kong under false identities for which he was repatriated after serving imprisonment, and on 4 June 2010 he again entered Hong Kong under his present identity as a visitor with permission to remain up to 19 July 2010 when he did not depart and instead overstayed, and was arrested by police on 17 April 2011 for which he was subsequently convicted of the offence of using a false travel document and making a false representation and was sentenced to prison for 12 months, during which he raised a torture claim to the Immigration Department on the basis that if he returned to India he would be harmed or killed by 3 former friends over certain business disputes between them, and after his torture claim 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 in Kolkata, West Bengal, India. After leaving school, he married his wife and raised a family with a daughter, and started his own trading business importing goods from Hong Kong for sale in his home district.

3.  He had known 3 friends from the same district who also carried out similar business activities but who gradually became jealous of his business success, and after one occasion in January 2010 when one of them was arrested by custom officers for smuggling, and for which they suspected it was the Applicant who reported to the authorities against them that they swore to take revenge against him.   

4.  Shortly thereafter one day while the Applicant was on his way home on his motorcycle, those 3 men tried to run him off the road with their car, and that they also fired shots at him with their guns, but when they missed they then threw a bomb at him which exploded and injured a passerby, but the Applicant managed to make his escape unharmed.    

5.  After the incident, the Applicant became fearful for his life, and so he fled to Phoolbagan to hide in a friend’s place, and on 4 June 2010 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 11 October 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  While being released on recognizance pending the determination of his claim, the Applicant was arrested by police again on 30 October 2014 for theft for which he was subsequently convicted and sentenced to prison for 12 months.               

7.  By a Notice of Decision dated 28 November 2016 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”).

8.  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 his 3 friends upon his return to India due to the 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 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”) 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 working experience to move to other part of the country away from his home district in large cities such as Delhi where it would be difficult if not impossible for anyone to locate him.

9.  On 22 March 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision which was by then way outside the 14-days period required by Section 37ZS(1) of the Immigration Ordinance, but was subsequently allowed to be filed out of time by the Board, and for which an oral hearing was scheduled on 14 May 2018 for his appeal to be heard before the Board but which the Applicant failed to attend without any explanation, and in the absence of any request from him for another oral hearing, the Board proceeded to deal with his appeal in his absence and on papers, and on 13 July 2018 the Board dismissed his appeal and also confirmed the decision of the Director.

10.  In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence as to his account of events that occurred prior to his departure of his home country and which he failed to attend the hearing of his appeal to clarify or explain them that it doubted the credibility of his claim of fear of harm from those 3 friends that caused him to flee his home country for Hong Kong, and that in any event it was a private personal dispute between them without any official involvement that state or 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 part of the country without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.  

11.  On 23 May 2019 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 Board reached their decisions wrongly in assessing the Applicant’s non-refoulement claim;

(2) That their decisions were not fair or reasonable as required by the Wednesbury test which was a clear case of unfair attitude shown by the Director and the Adjudicator which in itself is enough to render their decisions void; and

(3) That their decisions should be considered unreasonable in the scope of Public Law.  

12.  By then the Applicant was however seriously out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day 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.

13.  As the last day of the three-month period for him to file his Form 86 fell on 13 October 2018, the Applicant was therefore more than 7 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 HKC 393.

14.  In the Applicant’s case, a delay of more than 7 months must be considered as extremely substantial and inordinate, for which the Applicant did not provide any explanation in his Form or affirmation, and at the hearing of his application he explained that he was being detained at the Castle Peak Bay Immigration Centre (“CIC”) in late 2019, but as the record shows that the Board’s decision was sent on the same day of 13 July 2018 to his then reported address without being returned through undelivered post and when he was then not in detention, I do not accept the Applicant’s explanation as valid or relevant, nor do I see any good reason for his such serious delay.    

15.  As for the merits, if any, of his intended application, those grounds put forward by the Applicant as stated above are all just broad and vague assertions of the Applicant containing a few key words or phrases but without any particulars or specifics or elaborations as to how they apply to his case or how the Director or the Board had erred in their decision, or in what way were their decisions unfair or unreasonable. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, nor was he able to do so at the hearing of his application. As such I do not find any of them 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 merits in his intended application either.

16.  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.

17.  In the Applicant’s case, 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 his 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.                

18.  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.

19.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, I refuse to extend time 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