Amit Kumar v. Director of Immigration

HCAL 200/2017

[2018] HKCFI 217

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 200 of 2017

BETWEEN

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The applicant is a 33-year old Indian male who entered Hong Kong on 10 November 2013 with permission to remain as a visitor until 24 November 2013.  He however did not leave and overstayed during which he was issued an asylum certificate by the local United Nation High Commissioner of Refugees, and on 10 December 2013 he surrendered to the Immigration Department and was then released on recognizance since 12 February 2014.

2.On 30 April 2014 he lodged his claim for non-refoulement protection on the ground that he would be harmed or killed by his creditors for failing to repay his loan to them if he were to return to India.  By then he had had legal assistance from the Duty Lawyer Service and was legally represented in the subsequent screening interview by the Immigration Officer.

3.By a Notice of Decision dated 1 March 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim on the 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 (“CIDTP”) under Article 3 of Section 8 of the Hong Kong Bill of Rights (“HKBOR”) Ordinance, Cap 383 (“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”).

4.By a letter dated 13 January 2017 the Director invited the applicant to submit additional facts which he may consider relevant to his non-refoulement claim on all applicable grounds including any other absolute and non-derogable rights under the HKBOR including right to life under Article 2 (“BOR 2 Risk”).  By a Notice of Further Decision dated 8 February 2017 the Director again rejected the applicant’s claim.

5.By then the applicant had already brought an appeal to the Torture Claims Appeal Board (“the Board”), which he filed on 10 March 2016, against the Director’s earlier decision, with an oral hearing conducted on 21 February 2017 before the Board during which he gave evidence and answered questions put to him by the Board.  His appeal was dismissed on 20 April 2017.

6.On 11 May 2017 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board together with his affirmation with a 4-pages statement consisting of his grounds in support of his application, which is the matter now before me, but before considering those grounds it would be necessary to first summarize his case based on the details set out in those decisions.

7.The applicant was born on 10 November 1984 in Tehsil Nakodar, Jalandhar, Punjab, India, and after completing formal education he started a finance company in Jalandhar with a partner in 2010. His father passed away a few years back while his mother and his brother still live in Jalandhar.  He is single.

8.In mid-2012 he wanted to expand his business and asked A and B, the landlords of his company, for a loan of 4 million Indian Rupees for which he signed an agreement to repay them by a monthly instalment of 100,000 Rupees for five years.

9.In about early 2013 when the applicant as usual attended at the office of A and B to make his monthly instalment payment, A and B demanded that he repay the outstanding balance in one go, to which the applicant refused and insisted to follow the terms of their agreement.

10.Thereafter A and B together with other men would come to the applicant’s company and home making the same demand, and when he explained to them that he did not have the means to repay the balance of the loan in one go, they would threaten to kill him including on one occasion when B pointed a pistol at him, and on another occasion they came to his home when only his mother was in the premises where they also threatened her.

11.Finally on one evening, the date of which the applicant could not remember, he was intercepted on the street by A and B and their men and was assaulted with hockey sticks for 5 – 10 minutes and was threatened that they would kill him next time if he still failed to repay the loan.  As a result the applicant suffered a cut to his left eyebrow and bruises all over the body.  He did not go to the hospital for treatment but instead went to a clinic in the village where stitches were done to his cut, nor did he report the attack to the police for fear that A and B would take revenge against him and that he believed they had connections with the police and politicians, but he did stay away from home by hiding in his cousin’s home in Kangara which was some 150 km away for one month in October 2013 during which he was advised by his friends to leave India for the sake of his safety, and he then decided to come to Hong Kong, which he did on 10 November 2013 and subsequently applied for non-refoulement protection.

12.In rejecting his claim the Director did apply the applicable legal principle to assess all the applicable risks that the applicant could be subjected to even on the basis that his claim were true, and found on the basis of objective COI that internal relocation was available and reasonable in his circumstances for him to return to India to live and work safely albeit elsewhere away from his home area.

13.Similarly and having carefully considered all the evidence and information provided by the applicant and by treating his appeal as a rehearing, the Board also found in its very detailed and carefully analyzed and reasoned decision that the applicant has failed to make out his case in respect of any of the applicable grounds, and that on the basis that even if his claim were well founded in respect of the area in or around his home village where he previously lived, the Board also found that on objective COI he could reasonably relocate elsewhere in India and it would not be unduly harsh to expect him to do so.  In the premises it also seems plain to me that the Board has properly arrive at a decision so well founded by the evidence before it and after such careful and detailed analysis that it should be easily disturbed unless it can be clearly demonstrated that there is error in law or unfairness in procedure in arriving at its decision, or that the decision is irrational or Wednesbury unreasonable.

14.In the applicant’s affirmation and the exhibited four pages of statement filed in support of his application for leave to apply for judicial review, with rigorous examination and anxious scrutiny I am able to identify essentially two main grounds upon which he wishes to challenge those decisions as follows:

(a)       that he never received the letter from the Immigration Department inviting him to submit additional facts which he may consider relevant to his non-refoulement claim on all applicable grounds including his right to life under BOR 2 Risk, hence he has been deprived the opportunity to do so in respect of that occurred after he left India; and

(b)       that there was unfair procedure in that the decision makers failed to carry out sufficient research and inquiry into the COI conditions or to put sufficient weight on information highly relevant to his case, or to put too much weight on information not relevant to his case in their determination that internal relocation is available and reasonable to him to return to India.

15.For his first ground, assuming that the letter which the applicant complains of not receiving is the one dated 13 January 2017, and while it is just a bare assertion high standard of fairness requires that he be given benefit of doubt by accepting that he was therefore not aware of his right to submit additional facts until he received the Director’s Notice of Further Decision dated 8 February 2017 in which was referred that letter and its invitation to submit additional facts, and assuming that he did indeed have those additional facts or information, it cannot be denied that he would still have been able to do so in his appeal to the Board which dealt with it as a rehearing and that there was an oral hearing on 21 February 2017 during which he did give evidence and therefore had had ample opportunity to disclose those additional facts to the Board, and considering what he had stated in his four-page statement and if they were true, it is simply beyond anyone’s imagination why he did not do so until now.

16.Firstly, this is what he claimed to have been deprived of the right to submit additional facts on page 2 of his statement:

“ Officer still simply reiterate on all previous information and stressed on previous NOD but officer did not realize the current situation which I am suffering now and this situation can be killed/tortured in future that’s why I had applied BOR2 to seek protection from Hong Kong government but immigration had issued me further Notice of Decision without inform me just base on letter which I never received and I am reporting to immigration department regularly but I had never been informed by my reporting case officer according to my BOR2 invitation for additional facts and grounds and they had reached to determine about my Further Notice of Decision just relied on my previous facts which is totally unfair and injustice with me.”

17.He then proceeded to set out what I believe to be the additional facts which he had wanted to submit when he stated:

“ After I had left India, a lot of things had happened and circumstances had been changed and so many things had happened just basis of debt money. My family has been attacked after I fled from them and my opponent had troubled my family more than enough. When they were looking for me and they couldn’t find me so they always threat to my family. Last year they went to my place and they had tortured my family and they get mad while he failed to get information about my whereabouts. My family refused to tell them about my location. They came along with many of his fellow men and they had burnt my home and tortured my family, in result of which one member of my family get injured and few days later my cousin sister was died in result of this torture. My mother also gets serious injuries and police did not investigate honestly because of his influence with the other sect and they had bribed money to police. Police has misled the investigation to an accident because of their influence to the political party and had bribed money and I had lost my cousin sister who came to visit my home and we could not get justices. These incidents show that I would still face life threat risk upon return to my home country…”

18.Indeed if these additional information were true and did occur as alleged in last year which is therefore in 2016, surely the applicant would have disclosed them well before his application now before me, and even then they seem to me just the barest of allegations unsupported by any evidence and clearly not reasonably arguable in his intended application for judicial review, as pointed out by the Court of Appeal in TK v Michael Jenkins, CACV 286/2011, 21 November 2012, that within reasonable bounds the torture claimant is expected to conduct his own investigation and obtain information and materials that it requires to prove his case, something which this applicant has clearly failed to do.      

19.As for his complaints of unfair procedure in the assessment of COI relevant to his case in the determination of internal relocation, again the applicant has failed to provide any particulars as to what facts or information that the decision makers have placed too much or too little weight in their determination.  As such I am not satisfied that the applicant has any valid basis to rely on this ground.

20.In the premises and for the reasons given, I do not find any ground that shows any error in law or procedural unfairness on the part of the Director or the Board, or any failure on their part to apply a high standard of fairness in their assessment of the applicant’s claim, and hence I am not satisfied that his intended application for judicial review is reasonably arguable.  Accordingly I refuse his leave application.

Dated the 2nd day of February 2018.

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