LAMA AJAY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 509/2018

[2020] HKCFI 1273

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 509 of 2018

     Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 37-year-old national of India who last arrived in Hong Kong on 17 April 2016 with permission to work as a foreign domestic helper until the expiration of his employment contract, but when it was prematurely terminated one week later on 25 April 2016, he did not depart and instead overstayed and was arrested by police on 11 July 2016.  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 members of the banned terrorist group United Liberation Front of Assam (“ULFA”) for refusing to join their party or to pay extortion money to them.  He was subsequently being released on recognizance pending the determination of his claim. 

2.  The Applicant was born and raised in District Tinsukia, Guwahati, India as ethnic Nepali.  After leaving school he took over the management of one of his family businesses in a phone-call-making shop in Village Baragolai in the State of Assam.

3.  For years ULFA had been seeking to establish an independent state of Assam with armed struggle and was thus banned by the Indian government as a terrorist group, and to finance their activities they would seek donations from shop owners in Assam including the Applicant’s shop as well as other businesses of his family, and often the Applicant and his family would just make the donations to avoid harassments.

4.  However, starting in 2006 some ULFA members began to demand larger donations which had therefore affected their business profits, and hence the Applicant decided instead to look for employment elsewhere, and in 2008 he came to Hong Kong to work as a foreign domestic helper until 2014 when he departed for Macau and then returned to India in late 2015.

5.  Upon returning to his home town, the Applicant resumed running his family’s shop as before.  However, one day in late January 2016 some ULFA members approached the Applicant and demanded that he either joined their group or to pay a large donation or else he would be killed.  When the Applicant asked for time to seek help from his family to pay that kind of money, they let him go but warned him that they would come back for him soon.

6.  When the Applicant told his family of what happened, he was advised by his mother to leave India to save his life, and so he fled to Kathmandu in Nepal to apply to work in Hong Kong again, and on 17 April 2016 he departed for Hong Kong to start his employment, and when his contract was prematurely terminated one week later, he did not depart and instead overstayed, and upon his subsequent arrest he then raised his non‑refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 6 September 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  By a Notice of Decision dated 18 October 2017 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 (“torture risk”), risk of his absolute and non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) 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 the ULFA members upon his return to India due to the absence of or low intensity and frequency of past ill-treatment from them, that there was no evidence of any real intention on their part to harm or kill him other than to extort money from him, that in the absence of any official involvement that state protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information 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 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 area in India away from his home district in large cities such as Delhi or Chandigarh where it would be difficult if not impossible for those ULFA people to locate him.   

9.  On 30 October 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 9 January 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 27 February 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.  In its decision the Board accepted the Applicant’s claim of being harassed by some ULFA members either to join their party or to make large donations, but found even on his own case that there was no evidence of any physical harm being inflicted on him, and that in any event with state protection as well as reasonable internal relocation available for the Applicant to move safely within India away from his home district or from the State of Assam where ULFA usually operated so that he can re-establish his life and work without any risk of being located by those ULFA members that his claim for non‑refoulement protection failed on all applicable grounds.  

11.  On 28 March 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

     (1)    that his claim was determined by both the Director and the Board unfairly;

     (2)    that there was no legal and/or language assistance provided for his appeal to the Board; and

     (3)    failure to provide him with a translation of his NCF for his appeal to the Board due to his language problem;  

12.  His complaint under Ground (1) is just a broad and vague assertion without any particulars or specifics or elaboration as to how they were so.  As such and in the absence of any error of law or procedural unfairness in his process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find this ground reasonably arguable for his intended application. 

13.  As for his complaint under Ground (2) of not being provided legal assistance in his appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 367, and Re Zafar Muazam [2018] HKCA 176.

14.  The Applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal hearing before the Board and to answer questions put to him by the adjudicator without difficulty.  In the circumstances I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not think this ground is reasonably arguable.

15.  As for his complaint under Ground (3) of not being provided with a translation of his NCF, it is clear that his NCF was completed on his instructions to his legal representation from DLS, and that he was assisted by an interpreter at his appeal hearing before the Board during which he never raised any such issue, nor did he request that his NCF be interpreted or translated to him again.  As such and in the absence of any particulars or specifics to demonstrate that the basis of his claim has indeed been wrongly interpreted or wrongly understood by the Board, I find this complaint of the Applicant simply speculative and without basis.

16.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an 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 risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and 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 properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see 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.  The fact is that it has been established by both the Director and the Board in their decisions 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.     

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 I accordingly refuse 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