SHAIKH AFZAL v. TORTURE CLAIMS APPEAL BOARD

HCAL 1949/2020

[2021] HKCFI 1518

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1949 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 33-year-old national of India who arrived in Hong Kong on 4 May 2015 with permission to stay as a visitor up to 18 May 2015 when he did not depart and instead overstayed and was arrested by the police on the following day. 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 certain local supporters of rival political party Trinamool Congress Party (“TMC”). He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Kolkata, West Bengal, India. Whilst in college he joined the political party Communist Party of India (Marxist) (“CPIM”) and assisted in putting up posters and banners during election campaigns.

3.  After leaving school he worked as a freelance language tutor, and continued to participate in CPIM activities, including an election campaign in December 2013, during which he and his fellow CPIM supporters frequently came into conflicts with rival TMC supporters, and after one particularly violent confrontation when the Applicant was beaten and had to receive medical treatments for his injuries at the local hospital, he became fearful for his safety and fled to the neighboring town Aamtala, but when he ran into a group of TMC supporters and was again beaten by them, he fled to Lucknow and then Delhi, and from there he departed India in February 2014 for Dubai where he stayed until June 2014 without incidents before returning in India.

4.  However, after another violent encounter with TMC supporters in Lucknow in early 2015, the Applicant departed India again on 4 May 2015 for Hong Kong where he subsequently overstayed, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 3 December 2019 and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  Whilst being released on recognizance, the Applicant was again arrested by the police for the offence of drugs trafficking for which he was subsequently convicted on 8 December 2017 and sentenced to prison for 62 months.     

6.  By a Notice of Decision dated 3 March 2020 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 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 that his dispute with those TMC supporters was common between supporters of rival political parties during election campaigns in India with no evidence or reason why he had been specifically targeted by them, 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”) shows 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 parts of India away from his home district in large cities such as Mumbai where it would be difficult if not impossible for those local TMC supporters to locate him.

8.  On 13 March 2020 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 21 July 2020 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 31 August 2020 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board found inconsistencies and discrepancies in the Applicant’s accounts of his involvement in CPIM and his violent encounters with TMC supporters that it doubted the credibility of his claim, and found in any event in the absence of any official involvement that state/police protection would be available to him upon his return to India as well as reasonable internal relocation for him to safely move to other areas away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.  

10.  On 28 September 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 or in his supporting affirmation of the same date in which he merely repeated his claim that he cannot return to his home country where his life would be in danger, and that he does not agree with the decision but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application.

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 91 – 98 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 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 reasonably arguable basis to challenge the finding of the Board.  

13.  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 parts 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.     

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.  Furthermore, the Applicant on 12 April 2021 wrote to the court requesting to “close” his application for judicial review.

16.  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 not to proceed with his application, I accede to his request 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