SHARIF OMAR v. TORTURE CLAIMS APPEAL BOARD

HCAL 528/2020

[2022] HKCFI 3044

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 528 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 27-year-old national of India who arrived in Hong Kong on 28 November 2015 as a visitor with permission to remain up to 12 December 2015 when he did not depart and instead overstayed, and on 14 December 2015 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by certain local supporters of the political party All India Trinamool Congress (“TMC”) as he supported their rival Communist Party of India (Marxist”) (“CPI(M)”). 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 worked as a salesman in a shoes store in his home district, and followed his father’s footstep to support CPI(M) regularly attended their local meetings and rallies.

3.  Since 2007 the Applicant and his family had been threatened and intimidated by certain local TMC supporters that they had had to move to various places to avoid such threats, and during which the Applicant had been attacked on several occasions with cricket bats and wooden sticks that he suffered various injuries which required medical attentions.

4.  After the last assault in mid-2015 when he was attacked by those TMC supporters with knives and was taken to the hospital for medical treatment, the Applicant felt it was no longer safe to remain in India, and so on 27 November 2015 he departed for Hong Kong where he subsequently and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 21 September 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  While being released on recognizance pending the determination of his claim, the Applicant was arrested on 21 December 2016 and 6 April 2017 respectively for possession of dangerous drug and dealing in illegal goods and was sentenced to prison for the total term of 9 months.

6.  By a Notice of Decision dated 9 October 2017 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”).

7.  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 local TMC supporters upon his return to India as low 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 these were private disputes 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 2.9 million square kilometers 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 the country away from his home district in large cities such as Mumbai where it would be difficult if not impossible for anyone to locate him.

8.  On 6 November 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended 2 oral hearings on 10 July 2018 and 24 August 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 30 November 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board found significant inconsistencies and discrepancies in the Applicant’s evidence as to his account of events occurred in his home country prior to his departure that it doubted the credibility of his claim of fear of harm that caused him to leave his country for Hong Kong, and that in any event his claimed problems with certain local TMC supporters if true were private personal disputes 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.

10.  On 7 April 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1)   That the Director and the Board reached their decisions wrongly in assessing his non-refoulement claim in that they were not fair or reasonable as required by the Wednesbury test in failing to consider that his right to life must be protected by criminal law from extra-judicial killings that he may face if deported back to his home country;

(2)   That the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in his case which led to an unfair outcome of rejecting his non-refoulement claim and the fact that he was tortured at the behest of the state law enforcement agencies and the 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 Adjudicator acted unreasonable and was procedurally unfair by placing too much reliance on COI but failed to take the Applicant’s personal background and experience into account;

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

(5)   That the Director failed to attain high standard of fairness in failing to consider the fact that corruption and incompetency of the administration in the Applicant’s home country is still a very serious problem as reported by various human rights organizations which stated testament to the Applicant’s assertions;

(6)   That the Adjudicator was procedurally improper and unfair when assessing whether to accept explanations provided by the Applicant and unreasonably required him to respond to questions that he was not in a position to offer any response;

(7)   That the Adjudicator failed to take into account the nexus of political parties and official corruption which exist in the Applicant’s home country thus making persecution effectively persecution by the state; and

(8)   That the Adjudicator made a ruling to dismiss the Applicant’s appeal based on findings which the Adjudicator ought to allow the appeal and thus the decision was irrational.

11.  By then the Applicant was 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.

12.  As the last day of the three-month period for him to file his Form 86 fell on 28 February 2019, the Applicant was therefore more than one year late with his application, and in considering whether to extend time, the court shall have regard to (i) the length of eth 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.

13.  In the Applicant’s case, a delay of more than one year must be considered as extremely substantial and inordinate, for which the Applicant did not provide any explanation, and as the record shows that the Board’s decision was sent on the same day to his last reported address without being returned through undelivered post, I do not see any valid explanation or reason for his serious delay.

14.  As for the merits, if any, of his intended application, the grounds put forward by the Applicant as listed above are however 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 Adjudicator had erred in their decisions, or what relevancy were state acquiescence or extra-judicial killings to his claim, or in what way did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to consider official or political corruptions in his home country in assessing his claim. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and 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, I do not find any merits in his intended application either.

15.  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.

16.  In the Applicant’s case, the fact is that it has also been established by both the Director and the Board in their respective decision that the risk of harm in his 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.

17.  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.

18.  Furthermore, the Applicant recently on 18 August 2022 requested to “cancel his case” as his problem has been resolved and that it is now safe for him to return to his home country.

19.  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