MOHAMMAD HALIM JAWED v. TORTURE CLAIMS APPEAL BOARD

HCAL 2039/2018

[2021] HKCFI 2550

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2039 of 2018

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;

1.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 13 August 2014 refused; and

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

Observations for the Applicant:

1.  The Applicant is a 51-year-old national of India who last arrived in Hong Kong on 26 June 2007 with permission to remain as a visitor up to 10 July 2007 when he did not depart and instead overstayed, and was arrested by police on 26 September 2008. After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his creditor for failing to repay his loan. 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 before starting his own garment trading business by importing goods from Hong Kong for sell in his business.

3.  In 2006 for the purpose of expending his business, the Applicant borrowed a loan from a local loan shark repayable within one year with monthly interest payments.

4.  In 2007 the Applicant purchased goods from overseas but were seized by the Customs office over some tax issues which eventually led to the closure of his business in mid-2007, and as a result he was unable to repay his loan, and after having been threatened by his creditor on several occasions, the Applicant departed India on 11 June 2007 for Hong Kong, and after a side trip to China, he returned to Hong Kong on 26 June 2007 where he subsequently overstayed, and upon his arrest by the police he then raised his torture claim later taken as a non-refoulement claim for protection, for which he completed a Supplementary Claim Form (“SCF”) on 6 March 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

5.  By a Notice of Decision dated 9 April 2014 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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”).

6.  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 his creditor upon his return to India as low due to the absence of or low intensity and frequency of past ill-treatment from him, that it was a private monetary 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 India away from his home district in large cities such as Delhi where it would be difficult if not impossible for his creditor to locate him.

7.  On 22 April 2014 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 24 June 2014 before the Board during which he gave oral evidence and answered questions raised of his claim by the Adjudicators for the Board. On 13 August 2014 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence with multiple different answers to questions raised of his claim that it did not find him a credible witness, and that in any event in the absence of any evidence of 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 move safely to other area away from his home district without any risk of being located by his creditor that his claim for non-refoulement protection failed on all applicable grounds.     

9.  Meanwhile on 12 December 2016 the Director on his own initiative invited the Applicant to submit any additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”), and in the absence of any response from him, the Director by a Notice of Further Decision dated 5 January 2017 also rejected the Applicant’s BOR 2 claim upon finding that he failed to establish any personal or real risk of his absolute and non-derogable rights under HKBOR being violated including right to life under BOR 2 upon his return to India. .

10.  The Applicant did not bring any appeal to the Board against that further decision of the Director, and instead on 26 September 2018 he filed a Form 86 for leave to apply for judicial review of a decision of the Board which he dated 10 September 2018, but upon written confirmation from the Board that the only decision it has ever made regarding the Applicant’s claim is the one dated 9 April 2014 referred to above, I therefore regarded the Applicant’s Form 86 as one to challenge that only decision of the Board, of which no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date the Applicant merely repeated his claim that he cannot return to his home country as his life would still be in danger there and that he would like to remain in Hong Kong until his problem in his home country has been resolved but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his intended challenge.

11.  By then the Applicant was also seriously out of time with his intended application, as Order 53 rule 4(1) of the High Court Ordinance, Cap 4 requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date 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 13 November 2014, and hence the Applicant was more than 3 years 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.  

13.  In the Applicant’s case, a delay of more than 3 years must be considered as extremely substantial, for which he did not provide any explanation in his Form or supporting affirmation, and as the record shows that the decision was sent on the same day to the Applicant’s last reported address without being returned through undelivered post, I do not see any good reason for his very serious delay.

14.  As for the merits, if any, of his intended application, as also noted above, the Applicant has not put forth any proper ground 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 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.  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.

18.  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